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Tincon
09-10-2013, 10:45 AM
Well CGF has done it again: yet another imprudently filed and poorly litigated case, Teixera (decision attached), has been tossed out of court before trial. This time with prejudice. I may have lost count, but I believe this is the 13th case filed by CGF to suffer this fate. Unfortunately this record of losses is not counterbalanced by a single win.

From the decision: At oral argument, the Court inquired whether the plaintiffs could or wished to plead any additional facts in a further amendment to their complaint. The plaintiffs declined. Accordingly, the First Amended Complaint is DISMISSED WITH PREJUDICE.


I'm sure CGF can do some amazing grassroots work, but we would all be better off if CGF could simply focus and that work and stay out of litigation. Current counsel for CGF, Charles Hokanson, is no better than Gorski, Birdt, or Nichols. These well intentioned people do DAMAGE to our cause.

Defending these litigation efforts given the overwhelming evidence that CGF has no effective litigation strategy or counsel is not productive. Please join me in asking CGF to focus on what it does best, grassroots work, and leave the strategic litigation to the professionals. If they don't, these losses will certainly continue, and may effect RKBA in this state, and even federally, for many years to come.

On a side note, This CGF wiki: http://wiki.calgunsfoundation.org/Litigation_Past_and_Present

is a complete misrepresentation. Please be more honest CGF.

SemperFi1775
09-10-2013, 10:48 AM
so who are the professionals??

Tincon
09-10-2013, 10:53 AM
so who are the professionals??

The people actually winning:

http://www.calguns.net/calgunforum/showpost.php?p=11178261&postcount=11

http://www.calguns.net/calgunforum/showpost.php?p=11178288&postcount=12

taperxz
09-10-2013, 10:55 AM
The people actually winning:

http://www.calguns.net/calgunforum/showpost.php?p=11178261&postcount=11

http://www.calguns.net/calgunforum/showpost.php?p=11178288&postcount=12

In fairness, since Michel is a hired gun, don't you mean the NRA and CRPA are the ones winning? After all, it is their money hiring Michel.

SemperFi1775
09-10-2013, 11:02 AM
The people actually winning:

http://www.calguns.net/calgunforum/showpost.php?p=11178261&postcount=11

http://www.calguns.net/calgunforum/showpost.php?p=11178288&postcount=12

i'm all for people who have been there and done that successfully...

time to put egos aside and get everyone to do what they do best....

Tincon
09-10-2013, 11:03 AM
In fairness, since Michel is a hired gun, don't you mean the NRA and CRPA are the ones winning? After all, it is their money hiring Michel.

Perhaps, but my post was not intended to be a pissing match between organizations. I just want to point out that CGF has demonstrated, over and over and over again, that they have no viable litigation strategy or counsel to implement it. As such it is in the interest of all gun owners that they should withdraw from this particular arena. Instead, they should focus on grass roots work, which they have a much better track record with.

taperxz
09-10-2013, 11:08 AM
Perhaps, but my post was not intended to be a pissing match between organizations. I just want to point out that CGF has demonstrated, over and over and over again, that they have no viable litigation strategy or counsel to implement it. As such it is in the interest of all gun owners that they should withdraw from this particular arena. Instead, they should focus on grass roots work, which they have a much better track record with.

I understand your point. Many here on CGN may not though. Some here that are new would take you information as Michel is the org. to donate to or give credit to.

For those that don't know, Michel Assoc. is the law firm hired by the NRA and CRPA to do their litigation work.

stix213
09-10-2013, 11:13 AM
On pages 9-10 the court defined residences as "sensitive places" where gun bans in and around can apply, citing Heller.

Obviously guns bans with regard to residences were already make unconstitutional by Heller/McDonald. Seems like a pretty bad ruling. Not sure why CGF is the one at fault.


The Ordinance, which requires that gun stores obtain a permit to operate and be at least 500 feet away from sensitive locations are regulatory measures, is quite literally a “law[] imposing conditions and qualifications on the commercial sale of arms,” which the Supreme Court identified as a type of regulatory measure that is presumptively lawful. Heller, 554 U.S. at 626-27. In addition, the Ordinance shares the same concerns as “laws forbidding the carrying of firearms in sensitive places” because it requires the selling of guns to occur at least 500 feet away rom schools, residences, establishments that sell liquor, and other gun stores. Id. It is not a total ban on gun sales or purchases in Alameda County. On its face, the Ordinance is part of the Supreme Court‟s non-exhaustive list of regulatory measures that are constitutional under the Second Amendment. Id.

SemperFi1775
09-10-2013, 11:31 AM
has anyone at CGF/CGN done a SWOT analysis?

do they understand with limited resources, lack of public support, and/or bad litigation skills, they cannot win the war against power grabbers head on?

taperxz
09-10-2013, 11:37 AM
has anyone at CGF/CGN done a SWOT analysis?

do they understand with limited resources, lack of public support, and/or bad litigation skills, they cannot win the war against power grabbers head on?

CGN is not party to this lawsuit. The forum doesn't do litigation.

hoffmang
09-10-2013, 12:02 PM
This court ruled that the 2nd Amendment doesn't protect selling firearms at all. That contradicts the logic of Heller and McDonald and creates a split with Ezell. No further amendment to the complaint is needed if there is no constitutional protection for selling guns.

Please stop trying to blame CGF for judicial intransigence. We live in the 9th Circuit and it means we'll not be getting relief at District Courts and maybe not even at the 9th Circuit.

-Gene

Tincon
09-10-2013, 12:02 PM
Not sure why CGF is the one at fault.

We aren't just talking about one case, this is just the latest. If this was the first loss, or the second, or the third or the fourth, I might agree with you. Or maybe if they had won cases a few in between the losses. But they have not.

With each loss there are only a few distinct possibilities. Either they picked the wrong case, the wrong forum/venue, or they just didn't argue the case well enough to win.

FABIO GETS GOOSED!!!
09-10-2013, 12:21 PM
This court ruled that the 2nd Amendment doesn't protect selling firearms at all. That contradicts the logic of Heller and McDonald and creates a split with Ezell. No further amendment to the complaint is needed if there is no constitutional protection for selling guns.

Please stop trying to blame CGF for judicial intransigence. We live in the 9th Circuit and it means we'll not be getting relief at District Courts and maybe not even at the 9th Circuit.

Called that one lol:

This case is factually identical to Ezell and is headed for the 9th circuit where the anti-gun decision of the district court judge will either be overturned, or it will create a circuit split which will lead to Supreme Court review and a major 2A victory. Go CGF lit team! :laugh:

moleculo
09-10-2013, 12:28 PM
This court ruled that the 2nd Amendment doesn't protect selling firearms at all.
-Gene

I read through (albeit pretty quickly) the ruling and that's not what I read at all.

What I read is, "The plaintiffs fail to adequately plead that the Ordinance is facially unconstitutional under the Second Amendment and Equal Protection Clause. The plaintiffs also fail to adequately plead that the Ordinance was unconstitutionally applied to them under the Second Amendment and Equal Protection Clause."

Tincon
09-10-2013, 12:34 PM
This court ruled that the 2nd Amendment doesn't protect selling firearms at all. That contradicts the logic of Heller and McDonald and creates a split with Ezell.


There is no split, and won't be one unless this decision is upheld by the 9th circuit. Are you telling us you plan to appeal this dog of a case?


Please stop trying to blame CGF for judicial intransigence. We live in the 9th Circuit and it means we'll not be getting relief at District Courts and maybe not even at the 9th Circuit.


So all the failures are not your fault, it's just impossible to win in this circuit? That's funny, because other orgs/lawyers don't seem to have the same problem you do. See for example, Parker v. State of California, CBD v. BLM, Doe v. San Francisco Housing Authority etc. Also, don't forget Fiscal.

M&A has three cases before the 9th Circuit right now, on the merits, and has done so without having case after case tossed out at the pleadings stage.

In fact, in many of those cases the complaints were solid enough that the government didn't even bother to final an MTD. In Jackson they did and it resulted in a published standing ruling in the plaintiffs favor!

How come CGF can never do any of this? I guess it's all just bad luck, huh? How about taking some responsibility for once, instead of blaming everyone else. It's getting a bit tiresome.

RipVanWinkle
09-10-2013, 12:35 PM
On pages 9-10 the court defined residences as "sensitive places" where gun bans in and around can apply, citing Heller.

Obviously guns bans with regard to residences were already make unconstitutional by Heller/McDonald. Seems like a pretty bad ruling. Not sure why CGF is the one at fault.

I noticed this as well. The court repeatedly refers to residences as "sensitive places", whereas one would think that Heller makes one's residence the epitome of "insensitive places", at least as far as the resident is concerned.

The only way I can quickly resolve this conundrum is to assume that your home is "insensitive" for you while you are occupying it, but becomes "sensitive", even for you, the moment you step outside! Of course this wouldn't allow for any form of "carry", but maybe that's the point. Your neighbors' homes (within 500 ft.) are always "sensitive" as far as you are concerned, as yours is, likewise, for your neighbors.

Or does this only apply to the sale of firearms? Why are schools twice as "sensitive" to the transportation or carrying of firearms (1000 ft. "gun free zone") as they are to the sale of firearms (500 ft. "no gun sale zone")? So many questions, so little time! :o

SemperFi1775
09-10-2013, 12:56 PM
CGN is not party to this lawsuit. The forum doesn't do litigation.

ok, let me ask again:

has anyone at CGF done a SWOT analysis? do they even know what a SWOT is before i asked?

do they understand with limited resources, lack of public support, and/or bad litigation skills, they cannot win the war against power grabbers head on?

totus44
09-10-2013, 1:30 PM
ok, let me ask again:

has anyone at CGF done a SWOT analysis? do they even know what a SWOT is before i asked?

do they understand with limited resources, lack of public support, and/or bad litigation skills, they cannot win the war against power grabbers head on?

How about taking a few steps back....hoshin kanri, then kaizens? I'm not an attorney, but I live in the world of strategic planning and execution. At some point you have to step back and reanalyze an 0-fer situation for what it is.

Anthonysmanifesto
09-10-2013, 1:33 PM
do they understand with limited resources, lack of public support, and/or bad litigation skills, they cannot win the war against power grabbers head on?

you either have rights or you don't

OleCuss
09-10-2013, 1:40 PM
Just wanted to note that I do not know where CGF is going to take the case. Maybe there is brilliance in this one which I do not understand. Also, I'm pretty sure there are CGF cases out there which still might end up being wins.

That said, I think M&A is actually being sold a little short on this thread despite the kudos given to them.

Yes, they are hired by the NRA and CRPA to litigate.

But seriously, this bunch seem to be serious warriors for freedom. I don't think they are in it just for the money - I think they are doing something they really believe in.

If they get rich advancing the cause of freedom - I'll be just be delighted that they have done so.

fr33domfightr
09-10-2013, 1:48 PM
I didn't realize gun stores or liquor stores were somehow dangerous. I suppose even if the ordinance was 1 mile, this court would have ruled the same way, based on their criteria. I guess the city council is worried some kid will grab a gun and a bottle of booze, then have a drunken shootout at the school. :rolleyes:

Hoop
09-10-2013, 1:54 PM
But seriously, this bunch seem to be serious warriors for freedom. I don't think they are in it just for the money - I think they are doing something they really believe in.


Yes and they seem to be doing well.

With the legislature going full retard on gun control they will have their work cut out for them.

The real problem I see is getting a favorable ruling from a lower court.

taperxz
09-10-2013, 3:06 PM
This court ruled that the 2nd Amendment doesn't protect selling firearms at all. That contradicts the logic of Heller and McDonald and creates a split with Ezell. No further amendment to the complaint is needed if there is no constitutional protection for selling guns.

Please stop trying to blame CGF for judicial intransigence. We live in the 9th Circuit and it means we'll not be getting relief at District Courts and maybe not even at the 9th Circuit.

-Gene

I still fail to see how this suit can go from a local zoning ordinance to a 2A infringement. If you don't challenge the variance first, how can make the claim?

IANAL as you well know but, it seems a little obvious.

moleculo
09-10-2013, 5:46 PM
Every few months you come in with THIS same type of post.



That's because every few months another ruling against a CGF case is issued. But hey, they're playing chess....

The problem is that the "doing something" in these cases is better phrased "doing harm" to our cause. Some of us are able to recognize that and would rather that certain people finally learn that they are not the "right people" to be filing 2A litigation.

As I've said before, CGF has several important pending cases and I hope they can turn their track record around with wins in these cases.

kcbrown
09-10-2013, 5:47 PM
There is no split, and won't be one unless this decision is upheld by the 9th circuit. Are you telling us you plan to appeal this dog of a case?



So all the failures are not your fault, it's just impossible to win in this circuit? That's funny, because other orgs/lawyers don't seem to have the same problem you do. See for example, Parker v. State of California


That counts as a win, but the 2nd Amendment was not involved.



CBD v. BLM
Neither was it for this, near as I can tell (and note that the plaintiff's MSJ was denied in that case, whilst the defendant's was granted. So that you're counting this as a "win" is a bit puzzling to me. But note that I haven't gone through the entire case, so I may be missing something of great import that renders those surface facts moot).



Doe v. San Francisco Housing Authority
That was the "factually identical" case to Heller that was filed immediately after Heller was won, back when the antis were feeling a bit defeated, since they thought the Supreme Court was solidly on our side (something that appears to have changed since).

I'd bet that if such a case were to be filed now, you wouldn't get the same results, but even if you did, it would be because the case would be, essentially, "factually identical" to Heller.



M&A has three cases before the 9th Circuit right now, on the merits, and has done so without having case after case tossed out at the pleadings stage.
Yes, and how many of them were won by M&A at the district court level?

None, right?


You'll get no argument from me that CGF's counsel needs to figure out how to get past the pleadings stage, but you're a fool if you think even M&A can win a 2A case on the merits at the district level (and, likely, even at the circuit level) here in California for anything that isn't "factually identical" to Heller. And yet, you'd be the first to blast CGF and its counsel for failing to do the same. Yours, sir, is a double standard from what I can see.

OleCuss
09-10-2013, 6:37 PM
So now that we actually heard something from the chairman of the CGF (for the first time in 3 months, amazing how quickly he can show up when needed), here is a serious question for the CGF leadership:

Will they appeal this?

I'm not even in the same ballpark as a lawyer, but I'd be guessing counsel will want to take several weeks to examine the ruling and maybe run it past a few others such as (maybe) Gura and then make the decision.

I'm guessing no appeal, but I'm not sure I'd consider it to be a well-informed guess.

taperxz
09-10-2013, 6:42 PM
I'm not even in the same ballpark as a lawyer, but I'd be guessing counsel will want to take several weeks to examine the ruling and maybe run it past a few others such as (maybe) Gura and then make the decision.

I'm guessing no appeal, but I'm not sure I'd consider it to be a well-informed guess.

I think they are barking up the wrong tree. CGF seems to pushing an issue that is not yet relevant in the eyes of the court.

wildhawker
09-10-2013, 6:50 PM
There will absolutely be an appeal.

-Brandon

taperxz
09-10-2013, 6:54 PM
There will absolutely be an appeal.

-Brandon

Why Brandon? Aren't you the least bit concerned of taking a case that is not so great and creating more bad 2A precedence?

Just asking..

Anthonysmanifesto
09-10-2013, 6:56 PM
Why Brandon? Aren't you the least bit concerned of taking a case that is not so great and creating more bad 2A precedence?

Just asking..

you either have rights or you dont

taperxz
09-10-2013, 6:58 PM
you either have rights or you dont

CGF hasn't even established a 2A case in regards to this though. They have not even got passed the local variance issue yet.

Have they even argued about the legality of the variance? Which is a pretty general variance in regards to the local building laws.

mosinnagantm9130
09-10-2013, 7:11 PM
So now that we actually heard something from the chairman of the CGF (for the first time in 3 months, amazing how quickly he can show up when needed), here is a serious question for the CGF leadership:

Will they appeal this?

Would've been nice to have heard from CGF in the meantime, but I suppose they were busy

Tincon
09-10-2013, 7:21 PM
There will absolutely be an appeal.

-Brandon

And this is exactly the problem. Who will be counsel? What is that person's track record?

zhyla
09-10-2013, 7:29 PM
Why Brandon? Aren't you the least bit concerned of taking a case that is not so great and creating more bad 2A precedence?

Just asking..

They can tweak their case on appeal, can't they? They'd be foolish to not learn from the somewhat reasonable ruling and up their game. I get where FGG is coming from and wish CGF could somehow shake hands with him and bring him into their inner circle.

But at the same time we should expect to lose in damn near every lower court. If they lose on real grounds (not on lack of a case) then we get one more split. CGF staff may seem all mysterious when they say it's "chess" but I'm guessing the top level strategy is to lose enough appeals in the 9th that the quantity of circuit splits can't be ignored by SCOTUS.

OleCuss
09-10-2013, 7:32 PM
In regard to CGF and FGG? CGF/FPC has made at least a half-hearted (may have been very earnest) attempt to hire FGG on. FGG is not interested (not a slam at FGG in that he appeared to have sufficient reason not to do that).

Tincon
09-10-2013, 7:37 PM
They can tweak their case on appeal, can't they?

No, a plaintiff cannot make new allegations or introduce new arguments on appeal.


But at the same time we should expect to lose in damn near every lower court.

They are not just losing, they are not even reaching the point of a trial on the merits. Other organizations and their lawyers have not only succeeded in reaching that point (yes even here in CA), they have won.


I'm guessing the top level strategy is to lose enough appeals in the 9th that the quantity of circuit splits can't be ignored by SCOTUS.

Maybe that is the strategy (if losing as much as possible were a strategy) however things don't work that way. If only we could win by losing, CGF would be doing brilliantly. But losing is easy, and useless (or even harmful). Winning is hard, and useful. I don't know how else to say this.

mud99
09-10-2013, 7:41 PM
Perhaps the plan is to lose as quickly as possible in lower courts, so we can get to a court where we have a slight chance of winning, and not have to spend a lot of time arguing on deaf ears?

Although if this was dismissed with prejudice, can it still be appealed?

CAL.BAR
09-10-2013, 7:41 PM
They have to stop running with ridiculous cases such as this. Claiming 2A somehow prohibits a city from managing zoning so as to keep guns shops 500 ft from schools? That's like arguing that since a strip club involves free speech, the city can't stop them from setting up shop across from an elementary school. Good grief. Even the most hard core 2A "zealots" can see that might be a bit of a stretch. Hell, even if they win, who cares about how far a gunshop is from a school when there are NO gunshops b/c they don't any guns left to sell.

kcbrown
09-10-2013, 7:49 PM
CGF staff may seem all mysterious when they say it's "chess" but I'm guessing the top level strategy is to lose enough appeals in the 9th that the quantity of circuit splits can't be ignored by SCOTUS.

If that is their strategy, then it is one that is doomed to fail, not only because Tincon's at least partially right about winning, but because SCOTUS can and will ignore whatever it damned well pleases.

chris
09-10-2013, 7:59 PM
This court ruled that the 2nd Amendment doesn't protect selling firearms at all. That contradicts the logic of Heller and McDonald and creates a split with Ezell. No further amendment to the complaint is needed if there is no constitutional protection for selling guns.

-Gene

are Heller and McDonald going to be coming into play here in this wacked out state. and for my info McDonald implies the rights to the states via 14th Amendment right?

moleculo
09-10-2013, 8:03 PM
are Heller and McDonald going to be coming into play here in this wacked out state. and for my info McDonald implies the rights to the states via 14th Amendment right?

Heller & McDonald have no bearing on this case and the judgement clearly explains why. If you read the history and arguments behind this case and understand anything about zoning laws, you knew this lawsuit was full retard from the beginning.

chairmnofthboard
09-10-2013, 8:05 PM
suscribing.

CAL.BAR
09-10-2013, 8:05 PM
Heller & McDonald have no bearing on this case and the judgement clearly explains why. If you read the history and arguments behind this case and understand anything about zoning laws, you knew this lawsuit was full retard from the beginning.

EXACTLY! This was a ZONING case. No reason for us to have wasted money and resources on it.

ParanoidCivilian
09-10-2013, 8:12 PM
has anyone at CGF/CGN done a SWOT analysis?

do they understand with limited resources, lack of public support, and/or bad litigation skills, they cannot win the war against power grabbers head on?

Ha ha. Someone just started a business class (SWOT analysis)

hoffmang
09-10-2013, 8:19 PM
I await the answer to a question.

Which Federal civil 2A case was won at District Court in the last 20 years with the exception of Bateman v. Perdue in North Carolina by SAF or SAF and Comm2A's alien case? Not Heller, McDonald, or Ezell.

For those who haven't actually read the case, the plaintiffs did secure a Conditional Use Permit that was subsequently voted down by Alameda County. Most of you haven't done land use litigation and will not understand why that's the critical issue to being able to raise a Constitutional claim.

When you lose on a motion to dismiss, your facts must be taken as true in the appeal. One fact in our FAC is "Their conclusion is that it is virtually impossible to open a gun store in unincorporated Alameda County while complying with this rule due to the density of disqualifying properties. Specifically, the study indicates that there is only one parcel in the entire unincorporated county that is greater than 500 feet from a residentially zoned property, and that parcel is also unavailable as it lies within 500 feet of an establishment that sells alcohol."

So yeah, there is plenty of burden on commerce in arms. Some here think the personal right to self defense can only be a burden borne by individuals, but that's the same narrow rights sophistry the court only applies in gun cases. You'll note how abortion clinics don't have this problem.

The District Court here said, "The Ordinance, which requires that gun stores obtain a permit to operate and be at least 500 feet away from sensitive locations are regulatory measures, is quite literally a “law[] imposing conditions and qualifications on the commercial sale of arms,” which the Supreme Court identified as a type of regulatory measure that is presumptively lawful."

Translation. Only rational basis applies because the denial of opening a gun store in a commercial district where you could open an abortion clinic isn't protected by the right of the people to keep and bear arms.

That's wrong. As Ezell stated, "The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn't mean much without the training and practice that make it effective." (Emphasis added.)

-Gene

numpty
09-10-2013, 8:37 PM
you either have rights or you dont

i think i get it.:chris:

zfields
09-10-2013, 8:38 PM
Taged

sent from my damn tappy device...

taperxz
09-10-2013, 8:40 PM
Variances that are handed out for building permits are subject to appeal by the local residents. The homeowners association pushed for rejecting the variance. The supervisors were obligated to follow the will of those in the appeal process.

If the same building were to be turned into a strip joint, the residents could have taken the same action. The supervisors would then be compelled to not allow the strip joint.

You need to fix the variance process (in court) first. If the county continues to say no to the gun store, then you proceed. Isn't this basically what Judge Illston said?

Tincon
09-10-2013, 8:43 PM
The District Court here said, "The Ordinance, which requires that gun stores obtain a permit to operate and be at least 500 feet away from sensitive locations are regulatory measures, is quite literally a “law[] imposing conditions and qualifications on the commercial sale of arms,” which the Supreme Court identified as a type of regulatory measure that is presumptively lawful."

That's wrong. As Ezell stated, "The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn't mean much without the training and practice that make it effective." (Emphasis added.)

-Gene

Two problems with your argument.

First:
Under a section titled “Facts Relating to the „500 Foot Rule,‟” the plaintiffs merely state in conclusory fashion that the Ordinance “is not reasonably related to any possible public safety concerns a retail gun store might raise . . . [n]or does Alameda County articulate how the „500 Foot Rule‟ is narrowly tailored to achieve any legitimate government interest.” FAC ¶ 63. Without pleading facts to support these conclusions, the plaintiffs have not sufficiently pleaded a cause of action.

You did not plead sufficient facts to support the allegation that the 500 foot rule was not "narrowly tailored to achieve any legitimate government interest." (rational basis) Similarly, you did not plead sufficient facts to support an allegation that the 500 foot rule does not further an important government interest in a way that is substantially related to that interest (intermediate scrutiny). Therefore, on this basis alone, your 2A argument must fail under either standard of scrutiny. Could you have pled such facts? I think so, and the Court certainly gave you an opportunity to do so. You declined.

Second:
The FAC makes quite clear that there are existing retail establishments operating in Alameda County that provide guns. Indeed, the FAC admits that Teixeira himself “had previously owned a gun store in Castro Valley,” located in Alameda County. Teixeira makes no allegation that the Ordinance hampered his ability to operate a gun store before, nor do the plaintiffs allege that the “existing retail establishments” that sell guns are unable to comply with the Ordinance.

The Court is unaware of any authority stating or implying that the Second Amendment contemplates a right to “convenient access to a neighborhood gun store.” The Second Amendment‟s core right of the individual to possess guns is not impinged by the Ordinance as applied to the plaintiffs since it merely regulates the distance that all gun stores must be from certain sensitive establishments.


You did not plead sufficient facts to support the allegation that the 500 foot rule impermissibly infringes on the right to acquire firearms (which the Court admits exists and is part of the core 2A right). Could you have pled such facts? Given the circumstances, it is seems possible, but unlikely. Certainly you could have done a better job, and moved forward to a trial on the merits. That said, I still think this was a loser, and not worth the resources. It DOES NOT not create a circuit split (and won't even if you are foolish enough to appeal). That you and Brandon don't understand why is exactly the reason non-legally trained people should not be dictating legal strategy.

Which Federal civil 2A case was won at District Court in the last 20 years with the exception of Bateman v. Perdue in North Carolina by SAF or SAF and Comm2A's alien case? Not Heller, McDonald, or Ezell.

Please define "Federal civil 2A case". I mentioned a slew of 2A cases that have been won in Federal court (in CA districts no less) by other organizations.

arsilva32
09-10-2013, 8:57 PM
Perhaps, but my post was not intended to be a pissing match between organizations. I just want to point out that CGF has demonstrated, over and over and over again, that they have no viable litigation strategy or counsel to implement it. As such it is in the interest of all gun owners that they should withdraw from this particular arena. Instead, they should focus on grass roots work, which they have a much better track record with.

i agree CGF needs to stick to what they are good at doing, GR and individual gun owners.there success rate is much better there.i will still donate to them for that alone.

moleculo
09-10-2013, 8:59 PM
For those who haven't actually read the case, the plaintiffs did secure a Conditional Use Permit that was subsequently voted down by Alameda County. Most of you haven't done land use litigation and will not understand why that's the critical issue to being able to raise a Constitutional claim.


Except you made this a 2A case and even attempted to make it a 1A case, not a land use litigation case. Land use litigation is extremely complex and attorneys who specialize in it do nothing but that, yet CGF chose to go with attorneys who have little to no experience in such matters. Furthermore, the CGF board members profiles make it obvious to anyone that has had any exposure to land use litigation that they are not experienced enough in this field to even attempt such a matter. You can fool a lot of the members here with such nonsensical babble, but those of us who actually have professional exposure to such issues know better.

FWIW, you "haven't done land use litigation" either. You didn't even make it to trial. :facepalm:

Oh, and on the whole CUP issue: You really are making it obvious that you have ZERO CLUE on how these civil procedures work in local agencies. Keep up the good work explaining yourself, Gene...Keep digging; you'll make it out of that hole eventually...

taperxz
09-10-2013, 9:03 PM
Except you made this a 2A case and even attempted to make it a 1A case, not a land use litigation case. Land use litigation is extremely complex and attorneys who specialize in it do nothing but that, yet CGF chose to go with attorneys who have little to no experience in such matters. Furthermore, the CGF board members profiles make it obvious to anyone that has had any exposure to land use litigation that they are not experienced enough in this field to even attempt such a matter. You can fool a lot of the members here with such nonsensical babble, but those of us who actually have professional exposure to such issues know better.

FWIW, you "haven't done land use litigation" either. You didn't even make it to trial. :facepalm:

Oh, and on the whole CUP issue: You really are making it obvious that you have ZERO CLUE on how these civil procedures work in local agencies. Keep up the good work explaining yourself, Gene...Keep digging; you'll make it out of that hole eventually...

Either that or wake up screaming for 2A rights in China.

chainsaw
09-10-2013, 9:19 PM
There will absolutely be an appeal.

-Brandon

Thank you for a clear answer. I presume you're speaking ex cathedra as an official representative of CGF, disclaimers in your sig notwithstanding?

I love it when people make testable predictions.

taperxz
09-10-2013, 9:21 PM
You'll note how abortion clinics don't have this problem.

I have no idea why you constantly use the abortion argument when it comes to your ideas for 2A rights.

There are many places that restrict clinics like this in the nation.

http://www.nytimes.com/2012/06/23/us/mississippis-only-abortion-clinic-is-at-risk-as-new-law-nears.html

kcjr1125
09-10-2013, 9:34 PM
I didn't realize gun stores or liquor stores were somehow dangerous. I suppose even if the ordinance was 1 mile, this court would have ruled the same way, based on their criteria. I guess the city council is worried some kid will grab a gun and a bottle of booze, then have a drunken shootout at the school. :rolleyes:

Lol I work down the street from Hiram's guns in el cajon, CA. This place is literally next door to a liquor store and behind a 711. Great little place. Never seen any dunk teens wielding AR-47's out there :facepalm:

bruss01
09-10-2013, 9:34 PM
Sometimes it is advantageous to lose fast and hard, for an obviously ridiculous reason ("residences ARE sensitive places" LOL!) so that you can move quickly to the next level where your odds of getting a serious hearing are better. My hunch is that there will be quite a lot of these "fast, hard and ridiculous" losses at the lower levels, which is fine as it begins moving the issues up the food chain where the stakes are higher but the air is clearer.

Kestryll
09-10-2013, 10:25 PM
The childish comments and personal attacks have been removed.

Discuss the case, critique the suit and whether it should be appealed if you choose but the personal digs, mocking comments and smart aleck remarks are not going to remain.
Stick to the facts or legal opinion and STAY CIVIL.

FGG, if you can not make your points ABOUT THE CASE without the snarky comments don't post.

hoffmang
09-10-2013, 10:29 PM
You did not plead sufficient facts to support the allegation that the 500 foot rule was not "narrowly tailored to achieve any legitimate government interest." (rational basis) Similarly, you did not plead sufficient facts to support an allegation that the 500 foot rule does not further an important government interest in a way that is substantially related to that interest (intermediate scrutiny).

I'd suggest you read the complaint. It is inconvenient for your accusation and the judges ruling. Also, the entire point of more than rational basis scrutiny is that the obligation to show any legitimate government interest is on the government. You've correctly pointed out that the court did not apply anything but rational basis which means that it did not recognize even an intermediate scrutiny right to buy and sell arms legally.

-Gene

Apocalypsenerd
09-10-2013, 10:42 PM
@Tincon, FGG, & Moleculo:

For those of us who are not legally inclined, can you tell us why a public zoning ordinance or variation that limits a Constitutional right is not actually an infringement. From what you guys are saying, and the chances that I am misunderstanding are indeed high, it sounds like a zoning ordinance is not an infringement. So it sounds like the legal attack should have been over zoning but not over the 2A. That sounds nonsensical to me if the zoning does completely prohibit a portion of a Constitutional right in a municipality or county.

@CGF: Some answers as to why you're consistently losing before getting to the merits of a case might be helpful. If you have 13 losses and all you can say is that the courts are against you, well that holds a bit less water than if you were on your first loss. Can you refute the 13 losses? Are you taking another look at your strategy?

kcbrown
09-10-2013, 11:02 PM
You did not plead sufficient facts to support the allegation that the 500 foot rule was not "narrowly tailored to achieve any legitimate government interest." (rational basis) Similarly, you did not plead sufficient facts to support an allegation that the 500 foot rule does not further an important government interest in a way that is substantially related to that interest (intermediate scrutiny).


Question: what is the basis for your assertion here? The judge's claim of such in the decision? If that, then I have to laugh out loud.

Judges can and do claim whatever they want to in their decisions. If that is the basis on which you are saying here that insufficient facts were plead, then I would suggest that your assertion may lack merit, for the only standard by which your assertion could possibly have merit is an objective one. If you insist that your assertion is correct when the plead facts are measured against an objective standard, then you must cite the standard and show how the facts that were actually plead fail to meet it.

curtisfong
09-10-2013, 11:10 PM
The fundamental problem is twofold

1) CGF's efforts are far from flawless
2) No matter how flawless the effort, the odds of a win in a CA court when firearms are involved are near zero.

From what I can tell, nobody here is willing to admit both are simultaneously true.

Well, except kcbrown :)

moleculo
09-10-2013, 11:19 PM
I'd suggest you read the complaint. It is inconvenient for your accusation and the judges ruling. Also, the entire point of more than rational basis scrutiny is that the obligation to show any legitimate government interest is on the government. You've correctly pointed out that the court did not apply anything but rational basis which means that it did not recognize even an intermediate scrutiny right to buy and sell arms legally.

-Gene

Gene, here are two examples on the State of CA's website where CUP's were revoked based on constitutional arguments at trial (note: it helps your credibility in these matters if you actually make it to trial). I post these two examples because there are corollaries to be drawn from the Teixeira case if one is smart enough to understand the issues at hand.

General Welfare Standard

A county zoning ordinance requiring a church in a residential zone to obtain a conditional use permit prior to allowing it to use the land was found not to abridge the constitutional right of freedom of religious worship. The court held that a county zoning ordinance which provides a use permit to be granted if the use will not be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons or property in the neighborhood, or to the general welfare of the county, is not unconstitutional by reason of vagueness or uncertainty (Matthews v. Board of Supervisors of Stanislaus County (1962) 203 Cal.App.2d 800).

Nuisance Standard

The approval of a conditional use permit for the storage of houses was overturned on grounds that any use may be prohibited if found to be objectionable or incompatible with the character of the city and its environs due to noise, dust, odors or other undesirable characteristics (Snow v. City of Garden Grove (1961) 188 Cal.App.2d 496).

These examples can be found at http://ceres.ca.gov/planning/cup/condition.htm#limitations_anchor.

I'll give you a pass for not being able to understand the linkage between these published examples (on CA's .gov website, even) and the Teixeira case, because after all - your expertise is online music distribution and subscription billing SaaS services. However, surely the CGF legal team reviewed these cases and other relevant examples to understand how to position the Teixeira case before they filed?

Rossi357
09-10-2013, 11:28 PM
This decision says more about the courts than about the case. The 9th continues to use rational basis and calling it intermediate scrutiny.

Tincon
09-10-2013, 11:31 PM
I'd suggest you read the complaint. It is inconvenient for your accusation and the judges ruling.


I've read it. It is not well pleaded. If you intend to suggest otherwise, then perhaps you should quote the relevant portion of the complaint.

@Tincon, FGG, & Moleculo:

For those of us who are not legally inclined, can you tell us why a public zoning ordinance or variation that limits a Constitutional right is not actually an infringement. From what you guys are saying, and the chances that I am misunderstanding are indeed high, it sounds like a zoning ordinance is not an infringement. So it sounds like the legal attack should have been over zoning but not over the 2A. That sounds nonsensical to me if the zoning does completely prohibit a portion of a Constitutional right in a municipality or county.


The right is to possess. That you cannot buy a gun in a particular place does not necessarily prevent you from exercising this right. To win in court on such an argument, you would need to plead (among other things) facts which demonstrate to the court that the zoning restriction effectively prevents you from purchasing entirely.

For example, in a hypothetical case where you were required to by a gun in your municipality of residence (say DC for example), but zoning ordinances effectively prohibited a gun store from operating in that municipality, a 2A challenge would likely be successful. If, hypothetically, on the other hand you lived on a college campus, and you said I don't drive or have a bus pass so regulations prohibiting gun stores on campus infringe on my right to buy a gun where I want, such a challenge is not likely to be well taken (but would still be better plead than this case).

Here, the facts pleaded were not sufficient. Could sufficient facts have been pleaded? We will never know because CGF passed up the opportunity to plead better facts, and now the case has been dismissed with prejudice. An appeal will not be successful, and will likely do more harm.

Question: what is the basis for your assertion here?

I read the complaint, same as the judge did.

moleculo
09-10-2013, 11:31 PM
The fundamental problem is twofold

1) CGF's efforts are far from flawless
2) No matter how flawless the effort, the odds of a win in a CA court when firearms are CGF is involved are near zero.


Fixed it for you. The problem is not necessarily the courts. The problems is the players don't know how to play and therefore win the game. Truthfully, I don't know how to win the game, either. However, I am smart enough to recognize when it's being played wrong and thus understand the individual outcomes.

Our side needs help.

A LOT of help.

And we need it yesterday.

kcbrown
09-11-2013, 12:23 AM
I read the complaint, same as the judge did.

That is an insufficient basis for your claim. That only makes you knowledgeable about what was plead, not what standard was used to claim that what was plead was insufficient. It is the latter that I'm asking of you. Simply claiming the former is not enough.

If you cannot articulate the objective standard by which the pleadings were judged and show how the pleadings fail in the face of that standard, then you have no legitimate basis to claim that what was plead was, indeed, insufficient. In other words, if you cannot articulate that standard, then that would render your claim baseless, and it would lend credence to my belief that you are employing a double standard when judging CGF and/or it's counsel. And if you will not do that, then your claim will remain unsupported, and you would do well to retract it, for it would render your claim an unsupported accusation of incompetence.

kcbrown
09-11-2013, 12:35 AM
Fixed it for you. The problem is not necessarily the courts.


If the problem is not with the courts, then that should be easy to demonstrate.

Just point us at a substantial amount of 2A-based litigation that was successful in this state.

Good luck with that.



The problems is the players don't know how to play and therefore win the game.
This appears to presume that CGF is the only player in this state. It is not.

If none of the players are even reasonably successful at 2A litigation in this state, and that does indeed appear to be the case (the occasional 2A-based win does not make a convincing countertrend), then that can mean only one of three things:


Everyone who tries their hand at 2A litigation is incompetent. While this is possible, the odds of this being the case decrease with time.
The standards required for one to succeed are impossibly high.
Those who are adjudicating the cases are biased players who are insistent upon seeing the 2nd Amendment die in the crib.


One need only read the actual decisions to see that the third item is most certainly true in many of these cases.




Truthfully, I don't know how to win the game, either. However, I am smart enough to recognize when it's being played wrong and thus understand the individual outcomes.

Our side needs help.

A LOT of help.

And we need it yesterday.This much is certain.

elSquid
09-11-2013, 12:49 AM
If the problem is not with the courts, then that should be easy to demonstrate.


Does the injunction and subsequent overturn of the SF handgun ban (http://en.wikipedia.org/wiki/San_Francisco_Proposition_H_%282005%29) qualify? Heck, it was even pre-Heller.

-- Michael

safewaysecurity
09-11-2013, 1:16 AM
I await the answer to a question.

Which Federal civil 2A case was won at District Court in the last 20 years with the exception of Bateman v. Perdue in North Carolina by SAF or SAF and Comm2A's alien case? Not Heller, McDonald, or Ezell.

-Gene

Woolard V Sheridan :D

kcbrown
09-11-2013, 1:20 AM
Does the injunction and subsequent overturn of the SF handgun ban (http://en.wikipedia.org/wiki/San_Francisco_Proposition_H_%282005%29) qualify? Heck, it was even pre-Heller.


No, because it was challenged (and won) on the basis of state preemption. Note that I am speaking of 2nd Amendment litigation here. Which is to say, the win has to be the result of challenging the law on the basis that it violates the 2nd Amendment and winning on that basis.

Apocalypsenerd
09-11-2013, 1:20 AM
@tincon: So does being required to leave the county to exercise a right seem reasonable? It still seems like a rights case to me. If you had to drive even 25 miles to vote, wouldn't that seem like an undue burden in the courts?

Is KC correct that both the burden is almost impossibly high and that CGF is screwing up at the same time? It seems pretty obvious that CA Courts and that the 9th are biased and mostly corrupted by what they want the law to be, instead of honoring what the Constitution and The SCOTUS say.

SteveH
09-11-2013, 4:41 AM
The loses are troubling. Calguns has a history of hitching it's cart to the wrong wagons IMO (Ben Cannon/Gunpal).

I hope CGN/CGF continues to mature as a gun rights/political force. I hope with maturity and experiance CGN/CGF will become more effective.

Right now we are like the airsoft kid pretending to be a navy seal. Lets stop over reaching and do something well.

chainsaw
09-11-2013, 6:28 AM
No, because it was challenged (and won) on the basis of state preemption. Note that I am speaking of 2nd Amendment litigation here. Which is to say, the win has to be the result of challenging the law on the basis that it violates the 2nd Amendment and winning on that basis.

Well, that's hard.

Before Heller, the 2A was meant to apply to the militia. Heller has only been ~5 years ago (rough guess, my memory is bad).

And before MacDonald, the 2A wasn't incorporated against the state (the brief moment of Nordyke actually accomplishing something excepted; because of pending action, that brief moment was even ineffective). MacDonald was only ~3 years ago.

So there has only a 3 year window for successful 2A litigation.

But there is a much stronger argument. What does the 2A really mean? It means exactly what the courts say it means, no more and no less. All legal scholarship (including tea-leaf reading, historical study, and outright bull****ting) can only give us educated guesses to what it means. Right now, the 2A only means that the right to defend oneself, in ones residence, with a gun, can not be completely banned. Everything else is conjecture.

It seems very plausible that all of California's gun control laws (including local no-shoot zones, including permit issuance, including zoning restrictions such as the one discussed in this case) are perfectly constitutional. As long as you have a means to obtain a gun legally with reasonable effort, and as long as you can use that gun to defend yourself in your home, the 2A is not infringed.

And nobody can claim seriously that having to drive a few extra miles to buy a gun amounts to a complete ban on having guns in the home for defense. I just looked it up: Alameda county is only 821 square miles; that corresponds to a radius of 14 miles (assuming the horse is a sphere, old joke). The bulk of it is in incorporated cities and towns. I bet there is no point in unincorporated Alameda county (the issue in this suit) that is further than 20 miles (or half an hour by car) from a different county or from an incorporated city. Does half an hour look like an unreasonable burden, compared to the fact that the constitutional use of a gun (for self-defense) typically involves a person being seriously injured or killed, or at least threatened with these consequences?

Do you think it is possible for the CGF to come to grips with the fact that most California law is probably constitutional, and immune to legal attack? Think about what this would mean for the CGF, and for the goals the CGF principals have. Do you think this realization would be good for wildhawker's paycheck or hoffmang's ego?

OleCuss
09-11-2013, 6:36 AM
Two points if I may?

I reject the idea that the Constitution means what the courts say it means. We have as much of a duty to interpret the Constitution for ourselves as do the courts. But I admit that the government has generally substituted court edicts for the Constitution (except when the court edicts are pro-RKBA).

For me a 14 mile trip is not all that big a deal. But I know a lot of people for whom a 14 mile trip is nearly an insurmountable barrier do to finances, physical disability, or psychological make-up.

Those who are poor or have physical limitations should still have their Constitutional rights respected and protected.

But I tend to agree with you on the state of legal jurisprudence.

taperxz
09-11-2013, 6:58 AM
@tincon: So does being required to leave the county to exercise a right seem reasonable? It still seems like a rights case to me. If you had to drive even 25 miles to vote, wouldn't that seem like an undue burden in the courts?



You don't need to leave the county. There are other gun stores that exist that complied with the zoning laws.

curtisfong
09-11-2013, 8:49 AM
The problem is not necessarily the courts.

Again, until you can see that the courts make up a large proportion of our problem, you're useless.

What good is an airtight constitutionality argument presented in front of a court that treats strict scrutiny JUST like rational basis?

curtisfong
09-11-2013, 8:52 AM
As long as you have a means to obtain a gun legally with reasonable effort, and as long as you can use that gun to defend yourself in your home, the 2A is not infringed.


Wrong. Heller said no such thing, and you know it.


Do you think it is possible for the CGF to come to grips with the fact that most California law is probably constitutional

Wrong again. Given Heller's burden criterion, at least SOME reasonable attempt must be made to prove efficacy to pass strict scrutiny.

immune to legal attack?

Only in courts that cannot distinguish rational basis from strict scrutiny.

FABIO GETS GOOSED!!!
09-11-2013, 9:01 AM
FGG, if you can not make your points ABOUT THE CASE without the snarky comments don't post.

Would you please provide some guidance for this new anti-snark rule? As you might imagine, I do not agree with your wholesale excision of posts that are very much on point and germane to the topic of this thread because they may be "sarcastic, impertinent or irreverent in tone or manner" lol. Are all posts meeting that dictionary definition in your estimation subject to deletion now? Frankly, as far as moderators go, librarian has a more sophisticated understanding of the difference between sarcasm and personal attacks, which not one of my deleted posts was, and how sarcasm is integral to the criticisms that I am making. Anyways, let's have a look at one of the "snarky comments" that was deleted:

What a dumb case! :laugh:

I wouldn't expect you to get the reference (not a personal attack here, just my opinion that you do not have sufficient command of the details of the various CGF cases to actually get the reference), but in another ill-conceived case (Calguns v. San Mateo), CGF actually argued in a brief --filed by the same attorney who filed the Teixeira case-- that the ordinance in question was a "dumb idea." You have to ask yourself, why would you ever file an appellate brief that actually says that the ordinance you are challenging is a "dumb idea"? On what planet would that be in any way helpful? Not surprisingly, the appellate justices who decided their case went out of their way to blast CGF for doing that:

For this—among others noted above—we reject appellants' contention that the ordinance they are challenging was a “dumb idea.”

This is just one example of why CGF should not be doing this stuff. Interestingly, now that Calguns (predictably) lost the San Mateo case and made bad law, they are now asking the Cal Supreme Court to depublish the opinion. Wouldn't have it been easier not to file the appeal in the first place? See any similarities to Teixeira? Will CGV ever learn? lol.

Sarcastic, yes. Pointed and relevant criticism, yes. Personal attack, no. So what exactly is the problem?

FABIO GETS GOOSED!!!
09-11-2013, 9:01 AM
Wrong again. Given Heller's burden criterion, at least SOME reasonable attempt must be made to prove efficacy to pass strict scrutiny.

Wrong. Heller said no such thing, and you know it.

FABIO GETS GOOSED!!!
09-11-2013, 9:28 AM
As long as you have a means to obtain a gun legally with reasonable effort, and as long as you can use that gun to defend yourself in your home, the 2A is not infringed.

This is pretty much where the Nordyke panel (which was scrupulously faithful to Heller) landed in 2011:

Following this lead, when deciding whether a restriction on gun sales substantially burdens Second Amendment rights, we should ask whether the restriction leaves law abiding citizens with reasonable alternative means for obtaining firearms sufficient for self-defense purposes.

Thus, regulations of gun sales do not substantially burden Second Amendment rights merely because they make it more difficult to obtain a gun. Cf. Heller, 554 U.S. at 626-27 (“[N]othing in our opinion should be taken to cast doubt on . . . laws imposing conditions and qualifications on the commercial sale of arms.”).

The more apt comparison is with Nordyke, not Ezell. As I said earlier (before my post was deleted for snark lol), there literally is no burden whatsoever on any individual's right to acquire a firearm for self defense (assuming that the 2A right extends to acquisition). Had Teixeira actually included an individual purchaser as a plaintiff, maybe CGF could have made this kind of argument, but it would have been a sure fire loser for all the reasons chainsaw (and the Nordyke panel) have already mentioned. The gun dealer's "I have a constitutional right to open a gun store and sell guns anywhere I want" argument is even further removed from that.

curtisfong
09-11-2013, 9:30 AM
Wrong. Heller said no such thing, and you know it.

Of what use is strict scrutiny then? What is the point to Incorporating a fundamental right if local governments are free to pass *ineffective* laws that burden the right?

FABIO GETS GOOSED!!!
09-11-2013, 9:40 AM
Of what use is strict scrutiny then? What is the point to Incorporating a fundamental right if local governments are free to pass *ineffective* laws that burden the right?

Huh? Heller does not set forth any "burden criterion." Every 2A opinion that does--usually if not always borrowing from other incorporated fundamental rights--says that if there is no burden (or no "substantial burden"), then you don't even need to do scrutiny. Instead of filing cases with strong facts and strong arguments on "burden," CGF files cases with weak facts and weak arguments on burden, which are doomed to failure. Yet here they are in this thread arguing how strong Teixeira is on burden and how the case will be appealed and the Supreme Court will save the day. This has been my central criticism of the CGF litigation for years now, I pointed that out too in an earlier post but it did not get past the snark detector.

Kestryll
09-11-2013, 9:48 AM
As you might imagine, I do not agree with your wholesale excision of posts
As you might well imagine, your input and opinion was not asked for, you were TOLD to knock off the childish insults.
There isn't a discussion option there, the options are quite simple:
A) I understand and will leave the smartassed remarks at the door.
B) I can not post without the smartassed remarks, save us both time and ban me now.

There is no 'C)'

Sarcastic, yes. Pointed and relevant criticism, yes. Personal attack, no. So what exactly is the problem?
when you refer to people as 'dumb' and make mocking little comments and such, you're not discussing, you're not adding to the conversation and you are not acting in a civil manner.
You're being a dick and it's NOT going to end well for you.

monk
09-11-2013, 9:58 AM
The loses are troubling. Calguns has a history of hitching it's cart to the wrong wagons IMO (Ben Cannon/Gunpal).

I hope CGN/CGF continues to mature as a gun rights/political force. I hope with maturity and experiance CGN/CGF will become more effective.

Right now we are like the airsoft kid pretending to be a navy seal. Lets stop over reaching and do something well.

CGN and CGF are separate entities.

FABIO GETS GOOSED!!!
09-11-2013, 10:24 AM
when you refer to people as 'dumb'....

Now, which person did I refer to as "dumb" again? Take a deep breath and reconsider that statement.

Kestryll
09-11-2013, 10:28 AM
Now, which person did I refer to as "dumb" again? Take a deep breath and reconsider that statement.

As I said, this is not a discussion, you have option 'A' or option 'B'.

End of story.

FABIO GETS GOOSED!!!
09-11-2013, 10:37 AM
I'll go with option A. The Teixeira case is a dumb case that should not be appealed.

kcbrown
09-11-2013, 1:06 PM
Huh? Heller does not set forth any "burden criterion."


You're right. It didn't.

Instead, it set forth an even higher hurdle for the government:



The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.


(emphasis mine)

Scrutiny is a method of deciding on a case by case basis whether the right is really worth insisting upon. The above takes scrutiny right off the table, and leaves us with this: if a law infringes upon the right, then it is Unconstitutional, period. And infringement is determined by whether or not what the law prohibits falls within the scope of the right as understood at the Amendment's adoption.

FABIO GETS GOOSED!!!
09-11-2013, 1:34 PM
Scrutiny is a method of deciding on a case by case basis whether the right is really worth insisting upon.

According to you it is. Basically what you're doing here is plugging your definition of "scrutiny" into a pseudo-logical proof to arrive at the conclusion that scrutiny is off the table, when in fact Heller says no such thing. If you are saying that is what "scrutiny" should mean, that would be one thing, but you really need to read the Heller opinion more carefully before making claims that are not in any way supported by the text of opinion. The sentence immediately preceding the language you quoted would be a good place to start:

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach.

kcbrown
09-11-2013, 5:55 PM
According to you it is. Basically what you're doing here is plugging your definition of "scrutiny" into a pseudo-logical proof to arrive at the conclusion that scrutiny is off the table, when in fact Heller says no such thing.


Heller says no such thing directly, of course.

As far as it being "my" definition of "scrutiny", that is straightforward to answer. One need only ask: does scrutiny determine the scope of the right, or does it determine whether or not the government's interest is sufficient to overcome the right?

Of course, we both know it does the latter, for if it did the former, then government interest would not even enter into the equation. For the scope of the right is defined by what the people understood it to be at the time the Constitutional Amendment that protects it was ratified. Therefore, since the scope of the right is fixed by that understanding, that makes scrutiny an interest balancing test (since if the scope of the right is fixed, then scrutiny cannot answer the question about what the scope of the right is). This is further evidenced by the fact that the question of whether or not the right is infringed by the law is answered prior to performing a scrutiny analysis. If scrutiny determined the scope of the right, then it would be used to determine whether or not the right is infringed, and thus the question of infringement would not be answered first.



If you are saying that is what "scrutiny" should mean, that would be one thing, but you really need to read the Heller opinion more carefully before making claims that are not in any way supported by the text of opinion. The sentence immediately preceding the language you quoted would be a good place to start:


We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach.
The key word there is freestanding. They may know of no right whose core protection has been subjected to a freestanding (performed independently of other considerations) interest-balancing approach, but that does not mean they know of no right whose core protection has been subjected to an interest-balancing approach.

Scrutiny does precisely the latter. It balances the interest of government (the very definitions of the levels of scrutiny talk directly about government interest) against the interest of the citizenry in the exercise of the right in question.


I find it amusing in the extreme (but am entirely unsurprised) that you're even disputing me on this.


Now, it may be that the Supreme Court didn't actually mean what it said in that bit of prose. But it is not for us to presume that.

SgtDinosaur
09-11-2013, 6:37 PM
This thread makes me glad I'm not a lawyer. Reading all of this made my stomach hurt. And I thought I was argumentative.....

FABIO GETS GOOSED!!!
09-11-2013, 6:53 PM
I find it amusing in the extreme (but am entirely unsurprised) that you're even disputing me on this.

I'm disputing you because what you are saying is drivel.

We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie.

If the dissent's "interest-balancing" approach (i.e, what the opinion is referring to when it mentions "the power to decide on a case-by-case basis whether the right is really worth insisting upon") would not be applied to 1A, but scrutiny is applied to 1A all day long, then scrutiny cannot possibly mean "interest balancing" no matter how often you use italics. Your analysis of this passage in Heller is painfully deficient.

FABIO GETS GOOSED!!!
09-11-2013, 6:55 PM
Using the Merriam Webster definition of drivel by the way: nonsense.

ucsbgirlie18
09-11-2013, 7:28 PM
I can't believe no one has mentioned this yet. Was anyone else surprised to see that CGF's attorney tried to apply a First Amendment analysis at oral argument? WTF?!! This makes no sense at all. :confused:

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At oral argument, plaintiffs suggested for the first time that the appropriate analysis for regulations that impinge on Second Amendment rights is the three-part analysis used in First Amendment cases involving adult bookstores and movie theaters: whether the ordinance is a ban or a time, place and manner regulation; whether the ordinance is content neutral or content based; and, whether the ordinance is designed to serve a substantial government interest and reasonable alternative avenues of communication remain available. City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 46-47, 50 (1986) (holding that a municipal ordinance that prohibited any adult movie theater from being within 1,000 feet of any residential zone, family dwelling, church, park, or school is valid). The Court is unaware of (nor do the plaintiffs cite) any authority that applied this analysis in the Second Amendment context, nor will it adopt this analytical framework because a gun store, by its nature, does not have the expressive characteristics that allow for this sort of content-based analysis.

kcbrown
09-11-2013, 7:59 PM
I'm disputing you because what you are saying is drivel.


If what I'm saying is drivel, then you should be able to directly show that to be the case, through the plain meanings of the words involved and logic deriving therefrom.

Feel free.



If the dissent's "interest-balancing" approach (i.e, what the opinion is referring to when it mentions "the power to decide on a case-by-case basis whether the right is really worth insisting upon") would not be applied to 1A, but scrutiny is applied to 1A all day long, then scrutiny cannot possibly mean "interest balancing" no matter how often you use italics. Your analysis of this passage in Heller is painfully deficient.It means that scrutiny cannot possibly be the "interest balancing" that the dissent was using. That does not automatically mean that scrutiny is not "interest balancing". You are attempting to conflate one with the other.

Whether or not scrutiny is an "interest balancing" test is independent of Heller's usage of the term. And whether or not "interest balancing" has been used by the Supreme Court in the past to decide whether or not the right in consideration is really worth insisting upon, the plain fact of the matter is that in Heller the Court plainly rejected "interest balancing" tests (more precisely, any test that would be used by the courts to decide on a case by case basis whether the right is really worth insisting upon). Not just the one used by the dissent, but all of them.

You cannot use Heller itself as a barometer of whether or not scrutiny is an interest balancing test. That is something that is answered by what scrutiny does and how it does it. To insist, as you are here, that scrutiny must not be an "interest balancing" test because the Supreme Court has used scrutiny elsewhere is to throw out logic and the plain meaning of words "interest balancing" in favor of an arbitrary meaning of that phrase, to insist that its meaning derives from some convoluted logic deriving from how and when scrutiny has been used in the past than from the plain meaning of the term "interest balancing", in an effort to save the Supreme Court from a possible inconsistency with its own past.

You can play that game if you want to. I'll have no part of it, for it is nothing short of Doublespeak.


No, Heller said:


The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.


Either scrutiny is used to decide on a case-by-case basis whether the right is really worth insisting upon, or it isn't. Since scrutiny pits government interest against the exercise of a right and is used to decide on a case by case basis whether or not to allow the law to stand even after the court has decided that the law infringes upon the right, it is ipso facto incompatible with the above.

So we are left with this: either the Supreme Court meant what it said in the above, or it didn't. Since they said the above, we have to presume they meant it until presented with post-Heller evidence to the contrary.

curtisfong
09-11-2013, 8:15 PM
To insist, as you are here, that scrutiny must not be an "interest balancing" test because the Supreme Court has used scrutiny elsewhere is to throw out logic and the plain meaning of words "interest balancing" in favor of an arbitrary meaning of that phrase, to insist that its meaning derives from some convoluted logic deriving from how and when scrutiny has been used in the past than from the plain meaning of the term, in an effort to save the Supreme Court from a possible inconsistency with its own past.

This is exactly what law is, and what lawyers are paid handsomely to do: attempt to dismiss the plain meaning of words and substitute them with an arbitrary interpretation (that is to say, their desired result) of how they were used in the past.

I have long said the source of all the confusion is that the language of law resembles English. But make no mistake: it is not English, because the words (and their grammar) bear less and less commonality in meaning with English.

If lawyers had any technical or linguistic ability whatsoever, they'd develop a strict language of law, and there would no longer be any confusion. People would no longer bother trying to parse the language of law as if it were English.

Try to suggest to a lawyer that the language of law should be defined by a strict, strongly typed, non-ambiguous BNF grammar. Odds are they will have no clue what you are talking about.

ojisan
09-11-2013, 8:29 PM
This is exactly what law is, and what lawyers are paid handsomely to do: attempt to dismiss the plain meaning of words and substitute them with an arbitrary interpretation (that is to say, their desired result) of how they were used in the past..

:yes:

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.
— Alexander Hamilton

kcbrown
09-11-2013, 8:46 PM
This is exactly what law is, and what lawyers are paid handsomely to do: attempt to dismiss the plain meaning of words and substitute them with an arbitrary interpretation (that is to say, their desired result) of how they were used in the past.


Most certainly, that is what courts do.

What's most amusing is that lawyers claim that the courts are using the "plain meaning" of the words in their decisions, when that clearly is incompatible with the above. Either courts mean what the plain meaning of the words indicate, or they mean something else. Both cannot simultaneously be true.



I have long said the source of all the confusion is that the language of law resembles English. But make no mistake: it is not English, because the words (and their grammar) bear less and less commonality in meaning with English.

If lawyers had any technical or linguistic ability whatsoever, they'd develop a strict language of law, and there would no longer be any confusion. People would no longer bother trying to parse the language of law as if it were English.

Try to suggest to a lawyer that the language of law should be defined by a strict, strongly typed, non-ambiguous BNF grammar. Odds are they will have no clue what you are talking about.Of course, they would never agree to that even if they did understand what you were talking about, because to do so would have dire political consequences, as it would result in the law itself being written in such a way as to prevent the general population from even believing that they can understand what the law says.

But if lawmakers, law enforcement, and courts insist upon robot-like adherence to the law, then they must define the law with the precision required by robots. Inasmuch as they refuse to do so, we are left with a state that insists that people behave like automatons without providing instructions that are sufficiently specific to make that possible. The end result will, of course, be a continued slide towards oppression.


I do not live in the world FGG lives in, where the meaning of a word is whatever happens to be necessary for the legal system to save face. I live in the real world, where the meaning of a word is generally well-understood in advance (because the purpose of words is to enable communication that results in simultaneous understanding) and where people base their real-world actions upon their understanding of the words that guide them. That we, through our political and legal systems, leave so much of our fates in the hands of the likes of FGG is most troubling.

taperxz
09-11-2013, 8:52 PM
This is exactly what law is, and what lawyers are paid handsomely to do: attempt to dismiss the plain meaning of words and substitute them with an arbitrary interpretation (that is to say, their desired result) of how they were used in the past.

I have long said the source of all the confusion is that the language of law resembles English. But make no mistake: it is not English, because the words (and their grammar) bear less and less commonality in meaning with English.

If lawyers had any technical or linguistic ability whatsoever, they'd develop a strict language of law, and there would no longer be any confusion. People would no longer bother trying to parse the language of law as if it were English.

Try to suggest to a lawyer that the language of law should be defined by a strict, strongly typed, non-ambiguous BNF grammar. Odds are they will have no clue what you are talking about.

In other words, lawyers suck and love it when lawmakers try to outsmart the world.

On the other hand, very few lawyers i drink with have any common sense when it comes to real world stuff. They're to busy analyzing when i am getting stuff done that makes the world turn. Lawyers may be book smart but the minute you show them something useful, they are lost. :laugh:

Sorry for being snarky but in reality, its kinda true in my experience.

curtisfong
09-11-2013, 8:58 PM
I do not live in the world FGG lives in, where the meaning of a word is whatever happens to be necessary for the legal system to save face. I live in the real world, where the meaning of a word is well-understood in advance and where people base their real-world actions upon their understanding of the words that guide them. That we, through our political system, leave so much of our fates in the hands of the like of FGG is most troubling.

To be fair, the meaning of English is based on the historical use of its grammar and words, and the meaning of the language of law actually parallels this.

The difference is, the historical meaning of English is based largely on popular consensus, unlike the historical meaning of the language of law, which is based largely on what is (often) one unfortunate intentional misinterpretation after another, where the person doing the misinterpretation is empowered to do so by their position of authority, no matter what the consensus of the plain meaning is.

But I understand why this is so, since I also fear populism and mob rule.

The unfortunate consequence is that the language of law and English are rapidly diverging, and will continue to do so until they are completely unrelated, albeit cosmetically identical, languages.

FABIO GETS GOOSED!!!
09-11-2013, 9:04 PM
Whether or not scrutiny is an "interest balancing" test is independent of Heller's usage of the term.

:facepalm: This is exactly the problem with your pseudo-logical conclusion that Heller took scrutiny off the table.

curtisfong
09-11-2013, 9:07 PM
:facepalm: This is exactly the problem with your pseudo-logical conclusion that Heller took scrutiny off the table.

:D

Now just imagine what actual logicians think of what judges and lawyers do in the courtroom.

kcbrown
09-11-2013, 9:11 PM
Whether or not scrutiny is an "interest balancing" test is independent of Heller's usage of the term.

:facepalm: This is exactly the problem with your pseudo-logical conclusion that Heller took scrutiny off the table.

Ah, so you do insist on engaging in Doublespeak, where the meaning of a word or phrase is whatever it needs to be to achieve the desired outcome.

Well, you could easily be right in your implication that the Supreme Court is engaging in precisely that form of Doublespeak here. But then, simultaneously, I've been told (by Tincon, no less) that courts employ the plain dictionary meaning of the terms they use to convey the meaning they intend in their decisions. In this case, one of those things must be false.

Which leaves the obvious question: which one is it?


Regardless of whether or not scrutiny is an "interest balancing" test, the litmus test is whether or not it is used by courts to determine on a case by case basis whether or not the (enumerated) right prevails after infringement has been acknowledged. On that, I think there can be no question that it is so used. Whether or not scrutiny is an "interest balancing" test, that puts its use at odds with Heller.

FABIO GETS GOOSED!!!
09-11-2013, 9:12 PM
I can't believe no one has mentioned this yet.

This dumb case is chock full of missteps. My favorite was "only gun stores and retail superstores require conditional use permits." Or the sour grapes Nordyke references, I can't decide which.

kcbrown
09-11-2013, 9:17 PM
To be fair, the meaning of English is based on the historical use of its grammar and words, and the meaning of the language of law actually parallels this.

The difference is, the historical meaning of English is based largely on popular consensus, unlike the historical meaning of the language of law, which is based largely on what is (often) one unfortunate intentional misinterpretation after another, where the person doing the misinterpretation is empowered to do so by their position of authority, no matter what the consensus of the plain meaning is.


Precisely. While the meaning of English is, for the most part, the result of a collective group attempting to improve its mutual understanding, the meaning of the language of law is largely the result of individuals attempting to reduce that understanding for the purpose of exercising power.



But I understand why this is so, since I also fear populism and mob rule.
That has nothing to do with it, at least that I can see. Rather, it is purely an attempt to exercise power.



The unfortunate consequence is that the language of law and English are rapidly diverging, and will continue to do so until they are completely unrelated, albeit cosmetically identical, languages.The cosmetic similarities are not an accident, for they are useful to those who exercise power.

RRangel
09-11-2013, 9:53 PM
I can't believe no one has mentioned this yet. Was anyone else surprised to see that CGF's attorney tried to apply a First Amendment analysis at oral argument? WTF?!! This makes no sense at all. :confused:

PAGE 12:

Not out of line. Much like the First Amendment, the individual Second Amendment right to keep and bear arms, is a fundamental right incorporated throughout the states.

safewaysecurity
09-11-2013, 10:22 PM
Why can't Fabio be on our team =(

GM4spd
09-11-2013, 10:45 PM
They are not just losing, they are not even reaching the point of a trial on the merits. Other organizations and their lawyers have not only succeeded in reaching that point (yes even here in CA), they have won.



Maybe that is the strategy (if losing as much as possible were a strategy) however things don't work that way. If only we could win by losing, CGF would be doing brilliantly. But losing is easy, and useless (or even harmful). Winning is hard, and useful. I don't know how else to say this.


Interesting read,I had wondered about some of this. Now my worst
fears are being confirmed. Pete

GM4spd
09-11-2013, 10:56 PM
Or the sour grapes Nordyke references,

There is a name I haven't seen in awhile (Nordyke),when I first got here
that was ALL I heard ad nauseum. Well that came and went with a whole
bunch of game changing siht!:rolleyes: Pete

Mendo223
09-11-2013, 11:40 PM
we need to pick and choose out battles better, wasting time and money on a zoning ordinance is not worth the money i donate to this site. withdraw the billed hours from this case and use it on more important stuff, like say the semi auto or lead ammo ban.

i respect what CGF does, but to be honest im not exactly to happy that the $$ i donated to them went to try and fight against zoning ordinances.

jbj
09-11-2013, 11:56 PM
This is exactly what law is, and what lawyers are paid handsomely to do: attempt to dismiss the plain meaning of words and substitute them with an arbitrary interpretation (that is to say, their desired result) of how they were used in the past.

I have long said the source of all the confusion is that the language of law resembles English. But make no mistake: it is not English, because the words (and their grammar) bear less and less commonality in meaning with English.

If lawyers had any technical or linguistic ability whatsoever, they'd develop a strict language of law, and there would no longer be any confusion. People would no longer bother trying to parse the language of law as if it were English.

Try to suggest to a lawyer that the language of law should be defined by a strict, strongly typed, non-ambiguous BNF grammar. Odds are they will have no clue what you are talking about.

Not a bad idea, as this is what the medical, scientific and engineering professions have done in order to avoid confusion.

wildhawker
09-12-2013, 1:02 AM
i respect what CGF does, but to be honest im not exactly to happy that the $$ i donated to them went to try and fight against zoning ordinances.

You misunderstand the firearms culture and ecosystem.

Force voting booths into the next county over...

Force abortion clinics into the next county over...

Force bookstores into the next county over...

Force mandatory agents that facilitate the exercise of a federal enumerated right into the next county over...

Based on the government's own data, there are no properties in unincorporated Alameda County in which a gun store can open.

Can cities and counties institute a ban on the opening of gun stores in their jurisdictions?

-Brandon

Tincon
09-12-2013, 6:13 AM
Can cities and counties institute a ban on the opening of gun stores in their jurisdictions?

-Brandon

If it does not interfere with the exercise of the 2A right, then yes. I really wish this was easier for you to understand.


Based on government's own data, there are no properties in unincorporated Alameda County in which a gun store can open.


Note that this doesn't even mean that there are no guns stores in Alameda county. Do you really not understand why this suit failed?

You misunderstand the firearms culture and ecosystem.


Actually, he doesn't. You misunderstand the law.

FABIO GETS GOOSED!!!
09-12-2013, 6:41 AM
Note that this doesn't even mean that there are no guns stores in Alameda county.

Obviously you don't understand. Gun buyers would have to go to another jurisdiction to exercise their rights, you know, somewhere else in Alameda county. Just like Ezell.

jdberger
09-12-2013, 7:02 AM
You misunderstand the firearms culture and ecosystem.

Force voting booths into the next county over...

Force abortion clinics into the next county over...

Force bookstores into the next county over...

Force mandatory agents that facilitate the exercise of a federal enumerated right into the next county over...

Based on the government's own data, there are no properties in unincorporated Alameda County in which a gun store can open.

Can cities and counties institute a ban on the opening of gun stores in their jurisdictions?

-Brandon

If it does not interfere with the exercise of the 2A right, then yes. I really wish this was easier for you to understand.

Interesting. Just a few short years ago, you were so eager to fight, suggesting that those who counselled patience and incremental change were cowards.

And now, you simply knuckle under to the State's authoritarian impulses.

FABIO GETS GOOSED!!!
09-12-2013, 7:07 AM
Force voting booths into the next county over...

Force abortion clinics into the next county over...

Force bookstores into the next county over...

Force mandatory agents that facilitate the exercise of a federal enumerated right into the next county over...

Well now that you explained that filing this lawsuit was necessary to save the entire constitution, that changes things.

Mitch
09-12-2013, 7:17 AM
This thread makes me glad I'm not a lawyer. Reading all of this made my stomach hurt. And I thought I was argumentative.....

Lawyers have an interesting way of seeing the world. Listening to them yap can be illuminating and entertaining. And they almost never give simple, pat answers. That's not such a bad practice in a world that is anything but simple.

Stewdabaker23
09-12-2013, 7:45 AM
we need to pick and choose out battles better, wasting time and money on a zoning ordinance is not worth the money i donate to this site. withdraw the billed hours from this case and use it on more important stuff, like say the semi auto or lead ammo ban.

i respect what CGF does, but to be honest im not exactly to happy that the $$ i donated to them went to try and fight against zoning ordinances.

^^^ Agreed, All our efforts need to be focused on anti-gun legislation.

Tincon
09-12-2013, 8:23 AM
Interesting. Just a few short years ago, you were so eager to fight, suggesting that those who counselled patience and incremental change were cowards.

And now, you simply knuckle under to the State's authoritarian impulses.

:laugh: Getting a bit defensive aren't, Mr. Vice-Chairman of the CGF?

I really don't think accepting that you might have to drive 10 miles to buy a gun is "knuckling under the State's authoritarian impulses." There are much more important battles to be fought in this state, and better ways to use resources. But even if this was the most important issue we had, there is no excuse for failing to file a sufficient pleading; especially when the court makes it quite clear that failure to do so will get the case tossed.

Californio
09-12-2013, 8:26 AM
90% of lawyers/lawmakers are idiots, that means that 90% of judges are idiots.

It is only the 10% that have made good law in this Country, that is the reason historically social systems collapse every 200 years or so, they get fat and happy and stray from the ideals that made them great.



This thread makes me glad I'm not a lawyer. Reading all of this made my stomach hurt. And I thought I was argumentative.....

chainsaw
09-12-2013, 8:27 AM
Interesting. Just a few short years ago, ...
And now, ...
With age and studying comes wisdom. Usually, but not always. It seems in this case it worked.

I was going to post exactly what Tincon said above. Wildhawker asked the incendiary question: "Can the county ban ... gun stores ...". If you phrase it like this (with important details replaced by ellipses), the answer is: They can not. But if you phrase the question to actually match the reality on the ground, and ask: "Can the county ban opening gun stores, gas stations, propane filling stations, chemical plants, quarries, high-rise buildings and similarly dangerous and unusual facilities, within a certain distance from residential areas or schools, in the unincorporated part of the county, meaning outside of cities, given that there is sufficient room for these facilities in the remainder of the county?", then the answer is: absolutely they can.

Fighting a ban that is facially legal, constitutional, and sensible is not done in order to win a lawsuit. If we want to understand the pro/anti gun ecosystem, we need to think about the motivations of the parties involved, why land use planning is done this way, and why lawsuits such as this are filed. The really important question here is, as always: cui bono?

curtisfong
09-12-2013, 8:37 AM
Fighting a ban that is facially legal, constitutional, and sensible

In CA, according to our courts AND our legislature, ALL bans, no matter how onerous, ineffective, or burdensome to the fundamental right, are facially legal, constitutional, and "sensible".

Surely the easiest way to never lose a 2A case is to never file one in CA.

FABIO GETS GOOSED!!!
09-12-2013, 8:41 AM
I await the answer to a question.

What exactly is CGF's land use litigation resume? Since "most of us haven't done land use litigation" this should be educational. Thanks.

curtisfong
09-12-2013, 8:44 AM
How about we try something constructive, rather than bickering like children?

Name one firearm related law that a CA court would likely find facially illegal, unconstitutional, or not "sensible".

RipVanWinkle
09-12-2013, 9:04 AM
^^^ Agreed, All our efforts need to be focused on anti-gun legislation.

I think Brandon was trying to make the point that these local regulatory ordinances are anti-gun laws smuggled in under the guise of, in this case, a zoning ordinance. There's no question that this is the case, and Alameda County and municipalities within the county have been particularly aggressive and very successful in eliminating gun stores in the area.

A few years back we had an exercise where we went through old phone books to document the attrition rate of gun stores in Alameda County over the last 25 years or so. All the "full service" stores are gone and most of the smaller shops as well. This was in a context of increasing gun sales generally.

Whether or not CGF has been effective in attempting to counteract this trend, the phenomenon is real, and challenging these local regulatory schemes in court is a legitimate strategy. Other efforts are under way in towns in Contra Costa and Santa Clara counties to implement similar schemes, and the focus has been on persuading city councils to not adopt these anti-gunstore proposals, obviating the need for legal challenges.

You may be right that we now have bigger problems to face, but the 2A battle is being fought on many fronts. :(

RipVanWinkle
09-12-2013, 9:23 AM
:laugh: Getting a bit defensive aren't, Mr. Vice-Chairman of the CGF?

I really don't think accepting that you might have to drive 10 miles to buy a gun is "knuckling under the State's authoritarian impulses." .

Well, you're off by a factor of four: Drive 10 mi. to buy gun; pay for gun and $35 DROS; return 10 mi. to home; wait 10 days; drive 10 mi. to pick up gun; return 10 mi. to home with gun if everything goes well. 40 mi.+ $35. See how convenient it is? :facepalm:

curtisfong
09-12-2013, 9:49 AM
Well, you're off by a factor of four: Drive 10 mi. to buy gun; pay for gun and $35 DROS; return 10 mi. to home; wait 10 days; drive 10 mi. to pick up gun; return 10 mi. to home with gun if everything goes well. 40 mi.+ $35. See how convenient it is? :facepalm:

Exactly.

Tincon
09-12-2013, 10:25 AM
Name one firearm related law that a CA court would likely find facially illegal, unconstitutional, or not "sensible".

Hmm, how about this one: California court strikes San Francisco handgun ban (http://www.reuters.com/article/2008/01/10/us-usa-guns-sanfrancisco-idUSN0962828620080110)

In CA, according to our courts AND our legislature, ALL bans, no matter how onerous, ineffective, or burdensome to the fundamental right, are facially legal, constitutional, and "sensible".


Not true, see above. Yes it is difficult to win in CA. All the more reason to file better cases with better lawyers, and actually win. Creating losing precedent makes it harder, or even impossible.

There would have never been a Brown v Board of Education if the case that made it to the Supreme Court to decide the main issues had been about a black kid who got expelled from a predominately white school for drugs and fighting. IS there a slippery slope argument? Yes. Is filing bad cases on the periphery NOW before the major issues have been decided a good idea? NO.

I think Brandon was trying to make the point that these local regulatory ordinances are anti-gun laws smuggled in under the guise of, in this case, a zoning ordinance. There's no question that this is the case, and Alameda County and municipalities within the county have been particularly aggressive and very successful in eliminating gun stores in the area.

That may well be true. But the legal reality is THIS was a bad case with little chance of winning which was poorly litigated. That isn't going to help stop the problem, it is going to prevent future legal challenges of it. CGF now has a history of creating bad precedent at the appellate level, see the San Mateo debacle. Other gun groups now have to spend legal resources trying to get that case depublished. If they fail, CGF will have given a real weapon to the anti-gunners to use against us. There are consequences to filing bad cases and losing.

taperxz
09-12-2013, 10:28 AM
Well, you're off by a factor of four: Drive 10 mi. to buy gun; pay for gun and $35 DROS; return 10 mi. to home; wait 10 days; drive 10 mi. to pick up gun; return 10 mi. to home with gun if everything goes well. 40 mi.+ $35. See how convenient it is? :facepalm:

My closest gun shop is 25 miles away. Many many people in norcal drive many many miles to get to a gun store.

Those in the city have it easier. However, due to density problems that the local governments must regulate, you can't logistically have a gun store on every corner within walking distance. Its called a density problem. Thus you have zoning laws to avoid such problems with density and types of buildings and businesses in certain areas. Thats why this suit has nothing to do with the 2A or 1A, its density control and zoning.

bussda
09-12-2013, 10:39 AM
How about we try something constructive, rather than bickering like children?

Name one firearm related law that a CA court would likely find facially illegal, unconstitutional, or not "sensible".

Some individuals are bickering like children and attack organizations that are doing something because it creates a negative view of that organization. It is the "big lie" in action. If you say something for a long period of time and as frequently as possible, people will come to believe it is true whether it is factually true or false. If it is said once, it is an opinion. If it is continually repeated, it is an effort to direct opinion. There are persons whose efforts here are to trash positive efforts. That is the point of the attacks. It also is an attempt to waste time of senior persons in that organizations so they have less time to work on those issues they are working on. Or they may be genuinely misguided in thinking they are being positive when they are just making things worse.

Then again some people just like to argue.

As for a firearm law that a California court that would be found facially illegal, unconstitutional, or not sensible: The law that allows common people to buy firearms. The problem is that they would be overturned. :)

chainsaw
09-12-2013, 10:43 AM
Well, you're off by a factor of four: Drive 10 mi. to buy gun; pay for gun and $35 DROS; return 10 mi. to home; wait 10 days; drive 10 mi. to pick up gun; return 10 mi. to home with gun if everything goes well. 40 mi.+ $35. See how convenient it is? :facepalm:

Yes, but the person to whom this discussion applies has chosen to live in ***UNINCORPORATED*** Alameda county. Typically, unincorporated means the rural areas outside of cities, agricultural areas, the so-called wildland interface, mountains. These are places where discharging firearms is typically permitted, because it is safe to do so: if you shoot in a random direction, you will probably not hit a person or a house, because the density is so low. I live in an unincorporated area, the nearest residence is half a mile away, I can shoot guns in my back yard.

Typically land-use regulations for unincorporated areas are suitable for non-suburban non-commercial use, with low-density residential thrown in. For example, from my house the nearest "commercial" establishment (a place where you can walk in with cash and buy something, other than vineyards and meth dealers) is about 10 miles away. There are also no churches, schools, or government buildings (other than water processing) within the same 10-mile radius. It would be insane to open a gun store in an area like that (a gas station or grocery store is already commercially unviable); and conversely it would be stupid to change zoning to allow gun stores, given that no other commercial activity is permitted.

The problem here is that Alameda county has an anomaly, namely a large city (Castro Valley, around 60,000 inhabitants) which doesn't happen to be incorporated at all. This is highly unusual. Typical "towns" in unincorporated areas are places like Sunol, Boulder Creek, Pescadero, or Redwood Estates; not exactly bustling centers of activity (if they have a flower shop at all, it's the kind of place where a plant would sing "downtown, where the folks are broke", because it's not uptown).

And the situation is only going to get worse, as about a decade ago there was some legal changes that made incorporating cities or towns virtually impossible.

What we have here is not an assault on gun rights, but a failure of urban planning.

Tincon
09-12-2013, 10:45 AM
The Big Lie is that CGF is doing anything but harm with its "litigation strategy". If it is making things worse to point that out, then please explain how. Sticking your head in the sand and pretending CGF is infallible and is doing a good job, when in reality they lose case after case IS making things worse.

curtisfong
09-12-2013, 10:48 AM
There are consequences to filing bad cases and losing.

Yes. I agree. IMO the problem I see is that there are those that think ALL cases are bad and unwinnable... and they are the same people who have a 100% accuracy rating when they say a case won't be won.

I would like those people to start actively participating in finding both a case that can be won (*even if not in CA*), and devising a coherent legal strategy.

We already know most 2A cases will lose in CA. I agree that *how* they are lost matters if we expect to win at appeal. Obviously it isn't just enough to say "well we lost, but that's what we want because we want the case to go up the ladder".

So the key is to acknowledge a case is likely to be lost in CA, but not to let that discourage you from pursuing it in the first place. It simply isn't enough to say "well, CA will find that law constitutional, so we can't risk losing".

taperxz
09-12-2013, 10:51 AM
Yes, but the person to whom this discussion applies has chosen to live in ***UNINCORPORATED*** Alameda county. Typically, unincorporated means the rural areas outside of cities, agricultural areas, the so-called wildland interface, mountains. These are places where discharging firearms is typically permitted, because it is safe to do so: if you shoot in a random direction, you will probably not hit a person or a house, because the density is so low. I live in an unincorporated area, the nearest residence is half a mile away, I can shoot guns in my back yard.

Typically land-use regulations for unincorporated areas are suitable for non-suburban non-commercial use, with low-density residential thrown in. For example, from my house the nearest "commercial" establishment (a place where you can walk in with cash and buy something, other than vineyards and meth dealers) is about 10 miles away. There are also no churches, schools, or government buildings (other than water processing) within the same 10-mile radius. It would be insane to open a gun store in an area like that (a gas station or grocery store is already commercially unviable); and conversely it would be stupid to change zoning to allow gun stores, given that no other commercial activity is permitted.

The problem here is that Alameda county has an anomaly, namely a large city (Castro Valley, around 60,000 inhabitants) which doesn't happen to be incorporated at all. This is highly unusual. Typical "towns" in unincorporated areas are places like Sunol, Boulder Creek, Pescadero, or Redwood Estates; not exactly bustling centers of activity (if they have a flower shop at all, it's the kind of place where a plant would sing "downtown, where the folks are broke", because it's not uptown).

And the situation is only going to get worse, as about a decade ago there was some legal changes that made incorporating cities or towns virtually impossible.

What we have here is not an assault on gun rights, but a failure of urban planning.

Alameda county has quite a bit of unincorporated area in it that IS densely populated. They also have a lot of less dense (rural) areas within it.

Texiera (CGF) claims that there is no where in Alameda county that can fit this gun store. :laugh:

In reality, what they really mean is that there is no place left in Alameda county that would be "profitable" for their gun store, in their opinion.

What they are really fighting for here is a good location for their target business environment.

Tincon
09-12-2013, 10:56 AM
Yes. I agree. IMO the problem I see is that there are those that think ALL cases are bad and unwinnable... and they are the same people who have a 100% accuracy rating when they say a case won't be won.

I would like those people to start actively participating in finding both a case that can be won (*even if not in CA*), and devising a coherent legal strategy.

We already know most 2A cases will lose in CA. I agree that *how* they are lost matters if we expect to win at appeal. Obviously it isn't just enough to say "well we lost, but that's what we want because we want the case to go up the ladder".

So the key is to acknowledge a case is likely to be lost in CA, but not to let that discourage you from pursuing it in the first place. It simply isn't enough to say "well, CA will find that law constitutional, so we can't risk losing".

I agree with all that. As far as new cases, we just don't need any more right now (although that may change after this legislative session). But it isn't as if there is nothing being done: http://www.calgunlaws.com/wp-content/uploads/2013/06/NRA-CA-Accomplishments1.pdf

The major issues are being litigated, or will be.

The Right People are still working hard for our rights. They just aren't associated with CGF anymore.

bussda
09-12-2013, 11:00 AM
My closest gun shop is 25 miles away. Many many people in norcal drive many many miles to get to a gun store.

Those in the city have it easier. However, due to density problems that the local governments must regulate, you can't logistically have a gun store on every corner within walking distance. Its called a density problem. Thus you have zoning laws to avoid such problems with density and types of buildings and businesses in certain areas. Thats why this suit has nothing to do with the 2A or 1A, its density control and zoning.

You bring up a good issue, but if a restriction is placed on one line of commerce, but not on another, then why the restriction on that line of commerce?

I seem to remember issues regarding adult entertainment businesses, liquor stores, schools and residential areas.

Density is used as an excuse. Zoning is the vehicle to suppress a legal venture. It is really that simple. Why is that restriction in place, for a problem believed to exist or a real problem?

Tincon
09-12-2013, 11:14 AM
You bring up a good issue, but if a restriction is placed on one line of commerce, but not on another, then why the restriction on that line of commerce?

Density is used as an excuse. Zoning is the vehicle to suppress a legal venture. It is really that simple. Why is that restriction in place, for a problem believed to exist or a real problem?

The problem is that those are political issues, not legal ones. The legislature is free to address some applications and not others. This is true even with fundamental rights under strict scrutiny, such as freedom of speech. Incremental regulation is actually the norm. So for example, a city could ban billboards on trucks (compelling governmental interest of road safety) but not ban roadside billboards (which present the same hazard). The ban on truck advertising cannot be attacked on that basis. This is true even the "real" reason for the law (say, aesthetics or personal taste) might not be the compelling interest. Courts don't try to get into the heads of politicians like that, if there is an articulable compelling interest, the law stands.

bussda
09-12-2013, 11:21 AM
The Big Lie is that CGF is doing anything but harm with its "litigation strategy". If it is making things worse to point that out, then please explain how. Sticking your head in the sand and pretending CGF is infallible and is doing a good job, when in reality they lose case after case IS making things worse.

Says the person who in nearly every post that CGF is BAD, BAD, BAD.

Let me be plain spoken here. In watching firearms related litigation over the past years, CGF is the only one who can be seen to be doing something. I have not heard about other organizations doing anything. The other firearms related organizations in California have been so closely related to law enforcement and adopting the positions of senior law enforcement that they are almost like a law enforcement advocacy agencies then firearms advocacy groups. Those organizations are so zealously pro law enforcement that they will only go with a case if there is not possibility of losing and the plaintiff is perfectly clean. Thus letting criminal cases decide what the laws state.

The other organizations appear so afraid of attaching themselves to an issue that may put law enforcement in a bad light that they will not go anywhere near it. And the courts follow that example.

Look, many (if not all) of those judges will rule against CGF related litigation because if they do they can be viewed as being against law enforcement. And thus the issue becomes making decisions based on political factors and not the law.

chainsaw
09-12-2013, 11:25 AM
You bring up a good issue, but if a restriction is placed on one line of commerce, but not on another, then why the restriction on that line of commerce?

Ever tried to build an oil refinery? In particular in an unincorporated area, near an elementary school, with only residences around? Do you think it's hard to get permits for that?

Now, for a contrast, build a vineyard in the same area, maybe with a little tasting room that is open Saturdays from 1 to 4 PM only, and that leases land from the local elementary school, and in exchange plows 50% of its profits back into the school district. Do you think the planning department will give you more or less grief over the vineyard than over the refinery?

Are guns dangerous? Duh, yes. Ever tried standing in front of one when the other guy has a finger on the trigger and a round in the chamber?

Do gun stores contains and sell dangerous things? Duh, yes.

Can we regulate dangerous things? Duh, yes.

Can we regulate where dangerous businesses (those that deal in dangerous things) be set up? Duh, yes.

(Two comments. First, I hope Kestryll doesn't get the impression that "Duh" is snarky. I'm trying to explain the underlying concept in the starkest terms. Second, I know that vineyards are not quite as benign as my cute image indicates, and that there have been significant land use battles over agricultural zoning being abused by vineyards as excuses for industrial-scale wine production, or convention-center scale entertainment complexes.)

chainsaw
09-12-2013, 11:32 AM
In watching firearms related litigation over the past years, CGF is the only one who can be seen to be doing something.
Yes, but is what they are doing good for firearms rights? Or is it good for something else? Remember, I keep asking: Cui bono. Think about that. For a long time. Read up on the background of the principals involved. Read their writings. Analyze their motivation.

I have not heard about other organizations doing anything.
Then you have not been paying attention. For example, Michel's law firm (which is funded by the NRA, not by the CGF) has been doing a lot. Which by the way doesn't imply that I like the NRA (I don't), or that I endorse what Chuck Michel does (I think, just like the CGF, he serves the orders and needs of his client, not the wishes of the community that supports his client).

The other firearms related organizations in California have been so closely related to law enforcement and adopting the positions of senior law enforcement that they are almost like a law enforcement advocacy agencies then firearms advocacy groups.

How does that apply to the CRPA, the NRA member's councils, the various hunting-related organizations (waterfowl, deer, duck hunting?

And AFAIK, the various law enforcement organizations (CALEA, PORAC, and so on) have (a) much less political influence then people think, and (b) tend to not take strong opinions on political questions (like gun control laws), but tend to work for the benefit of their members.

Look, many (if not all) of those judges will rule against CGF related litigation because if they do they can be viewed as being against law enforcement. And thus the issue becomes making decisions based on political factors and not the law.
Since when are judges afraid of police unions?
In particular federal judges, who are not elected?

Tincon
09-12-2013, 11:35 AM
In watching firearms related litigation over the past years, CGF is the only one who can be seen to be doing something. I have not heard about other organizations doing anything.

I don't know what you are talking about. I'll be plain spoken too: You are not paying attention. Just a few posts up I linked to this: http://www.calgunlaws.com/wp-content/uploads/2013/06/NRA-CA-Accomplishments1.pdf

How can you read that and make the statement that "I have not heard about other organizations doing anything"?

Meanwhile, the only published appellate case litigated by CGF is NEGATIVE! Yes they are doing a lot, and it's all bad! They do nothing but lose. If you think every post by me is about CGF being bad, maybe it's because I can't seem to get through to some people, apparently including you, that they are not doing any good, and are doing bad things. And I'll keep saying it until it does get through:

CGF does not win. Ever. CGF loses. Always. These are facts. This creates bad precedent. Bad precedent is bad.

bussda
09-12-2013, 11:36 AM
The problem is that those are political issues, not legal ones. The legislature is free to address some applications and not others. This is true even with fundamental rights under strict scrutiny, such as freedom of speech. Incremental regulation is actually the norm. So for example, a city could ban billboards on trucks (compelling governmental interest of road safety) but not ban roadside billboards (which present the same hazard). The ban on truck advertising cannot be attacked on that basis. This is true even the "real" reason for the law (say, aesthetics or personal taste) might not be the compelling interest. Courts don't try to get into the heads of politicians like that, if there is an articulable compelling interest, the law stands.

But if a judge chooses, he can decide on political factors regardless of what the law says. He can even choose which arguments are allowed and ignore standing case law. Politicians pass laws for a variety of reasons, they don't have to be legal ones, but "just because". You are trying to rationalize that bad law is good. Doesn't work.

Tincon
09-12-2013, 11:41 AM
But if a judge chooses, he can decide on political factors regardless of what the law says. He can even choose which arguments are allowed and ignore standing case law. Politicians pass laws for a variety of reasons, they don't have to be legal ones, but "just because". You are trying to rationalize that bad law is good. Doesn't work.

You are making the same arguments as kcbrown, that the courts do whatever they want, so the law does not matter. If this was true, then why do anything? We are bound to lose right? I don't believe this is the case (not in the least because other groups don't have the problems with getting past the pleading stage that CGF does), but in any event it's a separate discussion.

bussda
09-12-2013, 11:54 AM
Ever tried to build an oil refinery? In particular in an unincorporated area, near an elementary school, with only residences around? Do you think it's hard to get permits for that?

Now, for a contrast, build a vineyard in the same area, maybe with a little tasting room that is open Saturdays from 1 to 4 PM only, and that leases land from the local elementary school, and in exchange plows 50% of its profits back into the school district. Do you think the planning department will give you more or less grief over the vineyard than over the refinery?

Are guns dangerous? Duh, yes. Ever tried standing in front of one when the other guy has a finger on the trigger and a round in the chamber?

Do gun stores contains and sell dangerous things? Duh, yes.

Can we regulate dangerous things? Duh, yes.

Can we regulate where dangerous businesses (those that deal in dangerous things) be set up? Duh, yes.

(Two comments. First, I hope Kestryll doesn't get the impression that "Duh" is snarky. I'm trying to explain the underlying concept in the starkest terms. Second, I know that vineyards are not quite as benign as my cute image indicates, and that there have been significant land use battles over agricultural zoning being abused by vineyards as excuses for industrial-scale wine production, or convention-center scale entertainment complexes.)

Ignoring the industrial arguments. A little fact. The more gun stores in an area, the lower the violence rates. Gun stores do not cause violence. Some people falsely believe they do. So they pass a law. Is it a good law, no; but it makes them think they will be safer.

Remembering that books are more dangerous then firearms, they why aren't books as heavily regulated as firearms. Same goes for automobiles. Either constitutionally protected or deemed to have considerable positive value.

The argument that just because something is dangerous it can be regulated should mean that 5 gallon paint buckets should only be purchased and be registered as owners by persons over 21 who have no children and make them liable if a child dies in one. Same argument can go for freezers and refrigerators.

If you can get past the feel good effect and onto the facts, you find that these laws are just to make people feel good.

chainsaw
09-12-2013, 11:59 AM
Ignoring the industrial arguments. A little fact. The more gun stores in an area, the lower the violence rates. Gun stores do not cause violence. Some people falsely believe they do. So they pass a law. Is it a good law, no; but it makes them think they will be safer.

Remembering that books are more dangerous then firearms, they why aren't books as heavily regulated as firearms. Same goes for automobiles. Either constitutionally protected or deemed to have considerable positive value.

The argument that just because something is dangerous it can be regulated should mean that 5 gallon paint buckets should only be purchased and be registered as owners by persons over 21 who have no children and make them liable if a child dies in one. Same argument can go for freezers and refrigerators.

If you can get past the feel good effect and onto the facts, you find that these laws are just to make people feel good.

Your arguments are fascinating (insert image of Mr. Spock and his eyebrow here). They might even be correct, or they might be wrong. I don't care. The law doesn't care.

Under rational basis or intermediate scrutiny, the only thing that matters is that a sensible argument in favor of the regulation or law can be made. Not that it is the most sensible argument.

(The original version of this post said: The facts that you quote about gun stores and public safety, plus a $3, will buy you a coffee at Starbucks. But then I decided that this is needlessly insulting, and Kestryll will see it as snark. By the way, I have no idea how to tell snark, even when I see it. At least I have figured out how to identify pornography when I see it.)

Also, be careful talking about 5 gallon buckets. You are giving OSHA and the legislators ideas. Because if they wanted to, they could regulate those too. They have already regulated gas canisters (fortunately, that regulation is trivial to work around, even legally and within the system).

taperxz
09-12-2013, 12:01 PM
[QUOTE]Ignoring the industrial arguments. A little fact. The more gun stores in an area, the lower the violence rates. Gun stores do not cause violence. Some people falsely believe they do. So they pass a law. Is it a good law, no; but it makes them think they will be safer.


HUH??? They don't contribute to violence but lower violence rates??:rolleyes:


Remembering that books are more dangerous then firearms, they why aren't books as heavily regulated as firearms. Same goes for automobiles. Either constitutionally protected or deemed to have considerable positive value.

Automobiles are the most heavily regulated items in society.

The argument that just because something is dangerous it can be regulated should mean that 5 gallon paint buckets should only be purchased and be registered as owners by persons over 21 who have no children and make them liable if a child dies in one. Same argument can go for freezers and refrigerators.

For some paint you do need to be of age.

If you can get past the feel good effect and onto the facts, you find that these laws are just to make people feel good.


Your fact structure is severely flawed.

Tincon
09-12-2013, 12:04 PM
If you can get past the feel good effect and onto the facts, you find that these laws are just to make people feel good.

Do you actually think that anyone here is unaware of that? These laws are stupid garbage designed to convince ignorant morons to vote for socialist weasels. We Know. Unfortunately we don't have a legal system that allows laws to be challenged on that basis. The zoning ordinance at issue here, as irritatingly pointless as it may be, is facially constitutional.

CGF either does not understand this, or does not care. That is a problem for every gun owner in this state.

RipVanWinkle
09-12-2013, 12:09 PM
My closest gun shop is 25 miles away. Many many people in norcal drive many many miles to get to a gun store.

Right, it's even more burdensome if you live in the country where there are few specialty shops of any description nearby. Are you saying that's a good thing? I assume that whatever benefits you derive from dwelling far from Rome outweigh the inconveniences; a straightforward tradeoff, your choice. But wouldn't it be better if you only had to drive to the gun store, do your background check, DROS, buy your gun and drive home with it? I've never seen any empirical evidence that the waiting period necessitating the whole second excursion accomplishes anything other than frustrating gun sales. Hence jdberger's somewhat undiplomatic reference to "you simply knuckle under to the State's authoritarian impulses".

Those in the city have it easier. However, due to density problems that the local governments must regulate, you can't logistically have a gun store on every corner within walking distance. Its called a density problem. Thus you have zoning laws to avoid such problems with density and types of buildings and businesses in certain areas. Thats why this suit has nothing to do with the 2A or 1A, its density control and zoning.

Nobody's asking for a gun store on every corner, or in any particular density or any other geographic consideration. Ordinarily a business doing retail sales of lawful goods applies for a business license in a location zoned commercial, or whatever. They then conduct business and either prosper or fail. Ultimately market forces will determine the density and distribution of gun stores or any other category of retail merchant. But from what I gather, this zoning ordinance was custom designed in an ad hoc manner to make it impossible for gun stores, in particular, to locate within Alameda County. So, yes, it does appear to impinge in some way on 2A.

chainsaw
09-12-2013, 12:10 PM
These laws are stupid garbage designed to convince ignorant morons to vote for socialist weasels.
Careful there, I resemble that remark. I'm one of these "socialist weasels".

CGF either does not understand this, or does not care. That is a problem for every gun owner in this state.
BINGO! And of the two explanations you proffered, it is not the former; these people are not idiots. Although perhaps there is a third explanation: they might be blinded by ideology. But I find your second explanation more likely.

Tincon
09-12-2013, 12:21 PM
Personally I think the anti-gun ideology is a manufactured political issue designed to appeal to the sort of person who thinks the government can solve fundamental problems with human nature. These people are often socialists (by one name or another). But not all are dishonest weasels who invent problems and "solutions" in order to manipulate people into giving them power.

ojisan
09-12-2013, 12:22 PM
Yes, but is what they are doing good for firearms rights? Or is it good for something else? Remember, I keep asking: Cui bono. Think about that. For a long time. Read up on the background of the principals involved. Read their writings. Analyze their motivation.


From wiki's definition of cui bono:
"The party that benefits may not always be obvious or may have successfully diverted attention to a scapegoat (http://en.wikipedia.org/wiki/Scapegoat), for example."

Your implications are disturbing.
The same concerns can be directed at all pro-2A groups.

The antis must be loving the divide and conquer approach going on here.

Yup, there are things to think about.
;)

kcbrown
09-12-2013, 12:22 PM
You are making the same arguments as kcbrown, that the courts do whatever they want, so the law does not matter. If this was true, then why do anything? We are bound to lose right? I don't believe this is the case (not in the least because other groups don't have the problems with getting past the pleading stage that CGF does), but in any event it's a separate discussion.

I don't believe it's necessarily because of the courts that CGF isn't getting past the pleadings stage, but as I said before, you'd be a fool to believe that even M&A has any kind of reasonable chance of winning on the merits of the 2A in California for anything other than the very case you cite as "proof" that the California courts are not entirely against us: the one case that was both "factually identical" to Heller and very nearly temporally identical as well (as it was filed right on the heels of the Heller victory).

So why do anything within the legal system? Simple:



There is the chance, however slight, of actually winning on the merits at the district level. Yep, that chance is nonzero. I do not argue that it is impossible to win in California, only that you're foolish to believe it will happen, or even has a reasonable chance of happening (i.e., can happen by most reasonable definitions of "can"). The fool's hope has not been entirely eliminated here.
Higher courts, most especially the Supreme Court, may deign to back us.
What else is there to do that has any chance of working, other than starting Civil War Round 2? A Constitutional Convention that is essentially the same as making something more illegal and which is more likely to wind up gutting the 14th Amendment than anything else? Yeah, right.


The bottom line is this: either we win in the courts, or we don't win at all. That doesn't mean we are likely to win in the courts -- quite the opposite -- but it's the only peaceful remedy that's even available. Government has learned that it can safely ignore everything else. As such, the civil litigation option must be tried, even though it will almost certainly fail.


I think it's likely in the extreme that we're going to lose, and that the only option that's going to be left on the table is Civil War Round 2. The anti-liberty side is intentionally forcing the country into that position because it wishes to make the reacquisition of liberty as expensive as possible -- too expensive for the tastes of those of us who desire it.

I don't believe a civil war is likely to be won by the side of liberty either, because the circumstances have changed such that the government holds all the cards. The country and, indeed, the world, is reverting to the historical mean, which is one where the vast majority of people are serfs. It is a process that must be fought against, but one would be a fool to believe that it is a fight that we will win.

taperxz
09-12-2013, 12:27 PM
Nobody's asking for a gun store on every corner, or in any particular density or any other geographic consideration. Ordinarily a business doing retail sales of lawful goods applies for a business license in a location zoned commercial, or whatever. They then conduct business and either prosper or fail. Ultimately market forces will determine the density and distribution of gun stores or any other category of retail merchant. But from what I gather, this zoning ordinance was custom designed in an ad hoc manner to make it impossible for gun stores, in particular, to locate within Alameda County. So, yes, it does appear to impinge in some way on 2A.

I doubt anything was "custom designed" It just so happens that the building/property that the plaintiff wanted didn't meet the criteria of the zoning law. The law was there before the plaintiff wanted to open up the store and other gun stores exist in Alameda county.

FWIW, the plaintiff before submitting the application to the county even measured wrong when submitting their statement of facts. They measured the distance from the front of the door instead of the side of the building.:nono:

Tincon
09-12-2013, 12:27 PM
Your implications are disturbing.
The same concerns can be directed at all pro-2A groups.


They are disturbing. But not all pro-2A groups are led by a man who gave $30,000 in one year to Diane "Gun Ban" Feinstein and pals in a single year (not to mention more recent contributions to Obama), then when called out on it, LIED ABOUT IT: https://calguns.net/calgunforum/showthread.php?t=697113&page=2

But even if CGF's motives are pure, the road to the loss of our rights may well be paved with such intentions.

taperxz
09-12-2013, 12:30 PM
I don't believe it's necessarily because of the courts that CGF isn't getting past the pleadings stage, but as I said before, you'd be a fool to believe that even M&A has any kind of reasonable chance of winning on the merits of the 2A in California for anything other than the very case you cite as "proof" that the California courts are not entirely against us: the one case that was both "factually identical" to Heller and very nearly temporally identical as well (as it was filed right on the heels of the Heller victory).



Perhpas M&A are smart enough to NOT take cases they don't think will get past the pleadings stage?

taperxz
09-12-2013, 12:32 PM
From wiki's definition of cui bono:
"The party that benefits may not always be obvious or may have successfully diverted attention to a scapegoat (http://en.wikipedia.org/wiki/Scapegoat), for example."

Your implications are disturbing.
The same concerns can be directed at all pro-2A groups.

The antis must be loving the divide and conquer approach going on here.

Yup, there are things to think about.
;)

They are disturbing because "chainsaw" is not exactly pro 2A.

kcbrown
09-12-2013, 12:36 PM
Perhpas M&A are smart enough to NOT take cases they don't think will get past the pleadings stage?

That may be, but the end result will (almost certainly) be an initial loss regardless. My point is that it is foolish to believe that victory at the lowest levels is achievable. While the chance of winning at that level is nonzero, it is so low as to be nonexistent in practical terms.

That does not relieve CGF of the burden of litigating well enough to get past the pleadings stage where possible, but I see scant difference between refusing a case on the basis that it can't be gotten past the pleadings stage and refusing it because it can't be won, because the end result is still the same. No, whether the case is taken or not must be based on more than merely whether or not it can be initially won, since in California, no such case can be initially won. To argue that a case should be taken only if there is a reasonable chance that it can be initially won is to argue that no laws in California should be challenged unless the resulting case would be "factually identical" to Heller. That would be the equivalent of handing victory to the other side on a silver platter.

Is there a better order in which to challenge laws in an attempt to litigate our way towards regaining our lost liberties? Perhaps. But I see nobody here arguing substantively on the basis of that.

ojisan
09-12-2013, 12:41 PM
They are disturbing because "chainsaw" is not exactly pro 2A.

Correct.
Tincon and some others have jumped on the bashing bandwagon and are even pulling it forward.
Do they understand what's really going on?

bussda
09-12-2013, 12:43 PM
I don't know what you are talking about. I'll be plain spoken too: You are not paying attention. Just a few posts up I linked to this: http://www.calgunlaws.com/wp-content/uploads/2013/06/NRA-CA-Accomplishments1.pdf

How can you read that and make the statement that "I have not heard about other organizations doing anything"?

Meanwhile, the only published appellate case litigated by CGF is NEGATIVE! Yes they are doing a lot, and it's all bad! They do nothing but lose. If you think every post by me is about CGF being bad, maybe it's because I can't seem to get through to some people, apparently including you, that they are not doing any good, and are doing bad things. And I'll keep saying it until it does get through:

CGF does not win. Ever. CGF loses. Always. These are facts. This creates bad precedent. Bad precedent is bad.

There you go again, saying CGF is bad. Big lie, remember.

Just because your cause is just does not mean you win. And with the deck stacked against you, what do you do? Look, I have seen that list. And mixed in is non litigation items, and items CGF cannot engage in, and that list is not widely known. And losses related as victories.



Yes, but is what they are doing good for firearms rights? Or is it good for something else? Remember, I keep asking: Cui bono. Think about that. For a long time. Read up on the background of the principals involved. Read their writings. Analyze their motivation.

I have learned some things. Some are out for money. Some are out for justice. And remember that people lie and overstate to make their case, and on both sides. And if most pro gun people were not so decent and respectful, it would be much worse. As for "cui bono", it is a question that cuts both ways. I ask that of the questioners as much as the objects of the questions. When a person starts attacking an organization that is viewed in a positive light and makes them look bad, who benefits, their competitors, the opposition? Who?


Then you have not been paying attention. For example, Michel's law firm (which is funded by the NRA, not by the CGF) has been doing a lot. Which by the way doesn't imply that I like the NRA (I don't), or that I endorse what Chuck Michel does (I think, just like the CGF, he serves the orders and needs of his client, not the wishes of the community that supports his client).

Let me amplify my original words.

I have not heard about other organizations doing anything effective.

Happy now?
(Oh no! Now I sound like Tincon talking about CGF. Argh!)



How does that apply to the CRPA, the NRA member's councils, the various hunting-related organizations (waterfowl, deer, duck hunting?

And AFAIK, the various law enforcement organizations (CALEA, PORAC, and so on) have (a) much less political influence then people think, and (b) tend to not take strong opinions on political questions (like gun control laws), but tend to work for the benefit of their members.

If look closely at those organizations, they desire more to viewed as pro law enforcement then pro firearms. Not to the benefit of the individual police officers, but as a hard line to criminal conduct.


Since when are judges afraid of police unions?
In particular federal judges, who are not elected?

I am not talking about unions, but about attitudes towards law enforcement and enforcing the law. Note that in the 9th Circuit, the probability of police being prosecuted and convicted for good cause is very low.

taperxz
09-12-2013, 12:43 PM
That may be, but the end result will (almost certainly) be an initial loss regardless. My point is that it is foolish to believe that victory at the lowest levels is achievable. While the chance of winning at that level is nonzero, it is so low as to be nonexistent in practical terms.

The same can be said for most civil rights in question. No lower level court wants to be a say all for something not settled by the SCOTUS.

If you are going to go out and actively pursue cases though, i would have to think one would be smart enough to figure out what would be a good case and what would be a not so good case. At some point you need to cut you losses if you are not only wrong but actually creating bad precedence.

Now i do hope that CGF prevails in Richards!!! That would certainly be a game changer and i have plenty of crows around i would be happy to shoot and then eat for every ones enjoyment.

taperxz
09-12-2013, 12:48 PM
Correct.
Tincon and some others have jumped on the bashing bandwagon and are even pulling it forward.
Do they understand what's really going on?

For the record, i am a fence sitter on the whole CGF debacle. I'm not happy or impressed with what they have done but am still holding hope. Hope for any one to advance our rights for that matter.

I just don't want to see bad precedence set by CGF for being hard headed. Then again, i have no problem eating crow.

I will personally take Brandon out to the House of Prime if good comes from their work!

Edit: If he wishes to not go with me i would still give him a gift certificate to go with the person of preference. Even if he wants to take Gene or anyone else in CGF.

kcbrown
09-12-2013, 12:51 PM
The same can be said for most civil rights in question. No lower level court wants to be a say all for something not settled by the SCOTUS.


No, the same can't be said for most civil rights.

Courts were not nearly as loathe to rule in favor of civil rights after Brown v Board of Education as they are here.

Understand this: we have never seen the level of judicial defiance of the Supreme Court as we are seeing before our eyes now. Never. Judicial defiance of the Supreme Court occurred during the civil rights movement, but it was not wholesale and, more importantly, it did not occur within the federal judiciary.



If you are going to go out and actively pursue cases though, i would have to think one would be smart enough to figure out what would be a good case and what would be a not so good case. At some point you need to cut you losses if you are not only wrong but actually creating bad precedence.
You don't get it: every loss creates "bad precedence". You cannot escape that risk. Period.

And because the chance of initially winning is essentially zero, the only distinction between a bad case and a good case is the solidity of the fundamental argument one is making against the law in question.



Now i do hope that CGF prevails in Richards!!! That would certainly be a game changer and i have plenty of crows around i would be happy to shoot and then eat for every ones enjoyment.As do I. But I am a realist. I go where the evidence leads. And the evidence says that we will not prevail in Richards. Or Peruta. Or Baker.

Tincon
09-12-2013, 12:51 PM
Is there a better order in which to challenge laws in an attempt to litigate our way towards regaining our lost liberties? Perhaps. But I see nobody here arguing substantively on the basis of that.

Is filing bad cases on the periphery NOW before the major issues have been decided a good idea? NO.


;)

There you go again, saying CGF is bad. Big lie, remember.

It isn't a lie, it's simple logic. Bad precedent = Bad. CGF = Bad precedent. CGF = Bad.

OTH

Successful Grassroots Efforts = Good. CGF = Successful Grassroots Efforts. CGF quitting its failing attempts at litigation and focusing on Successful Grassroots Efforts = GOOD.


Just because your cause is just does not mean you win. And with the deck stacked against you, what do you do? Look, I have seen that list. And mixed in is non litigation items, and items CGF cannot engage in, and that list is not widely known. And losses related as victories.

It's the same deck for everyone. It think it's funny that you are nitpicking the actual successes in that list, while ignoring the complete lack of success, and actual damage caused, on the part of CGF. Why? I mean really? Because they are the "cool kids" or something? I really don't get it.

taperxz
09-12-2013, 12:55 PM
No, the same can't be said for most civil rights.

Courts were not nearly as loathe to rule in favor of civil rights after Brown v Board of Education as they are here.



Excuse me but Brown came 100 years after the civil war. That was the first movement towards civil rights. It took 100 years!!!

Tincon
09-12-2013, 12:57 PM
Excuse me but Brown came 100 years after the civil war. That was the first movement towards civil rights. It took 100 years!!!

And... you know.... a civil war. Some might even say two of them, there was quite a bit of "rioting" back in the day.

kcbrown
09-12-2013, 12:59 PM
Is filing bad cases on the periphery NOW before the major issues have been decided a good idea? NO.


In an ideal world, where the Supreme Court's position on the subject is not subject to change without notice, you'd be right.

We don't live in that world. We live in a world where the Supreme Court is but a scant few years from having its composition changed in such a way as to foreclose any future litigation regardless of how the major issues have been decided.

While filing peripheral cases before the major issues have been decided is not a good idea, it is a better idea than filing those cases when they are certain to be unwinnable at the highest levels.

kcbrown
09-12-2013, 1:02 PM
Excuse me but Brown came 100 years after the civil war. That was the first movement towards civil rights. It took 100 years!!!

Yes, but that was the result of the Supreme Court itself ruling against civil rights in, e.g., Slaughterhouse.

What we see now is judicial rebellion against the Supreme Court. That is unprecedented.

We won't have any liberties left if we wait another 100 years.

taperxz
09-12-2013, 1:06 PM
Yes, but that was the result of the Supreme Court itself ruling against civil rights in, e.g., Slaughterhouse.

What we see now is judicial rebellion against the Supreme Court. That is unprecedented.

We won't have any liberties left if we wait another 100 years.

OH BALONEY! You and i only see that in certain states. The rest of the states in this country are getting along with the 2A just fine.

Perhaps because there are so few states that dislike the 2A there is a tougher road to SCOTUS that are good clean cases. Additionally, see Illinois!

RipVanWinkle
09-12-2013, 1:10 PM
I doubt anything was "custom designed" It just so happens that the building/property that the plaintiff wanted didn't meet the criteria of the zoning law. The law was there before the plaintiff wanted to open up the store and other gun stores exist in Alameda county.

FWIW, the plaintiff before submitting the application to the county even measured wrong when submitting their statement of facts. They measured the distance from the front of the door instead of the side of the building.:nono:

Maybe not, but the same approach is an element of the attempts to keep gun stores out of Pleasant hill, Sunnyvale, and Los Gatos, orchestrated by Brady and LCAV (or whatever they're calling themselves these days). LCAV also has a history of collaboration with Alameda County on Nordyke.

From what Tincon has been saying it sounds like he considers these zoning ordinances to be legally unassailable once passed, or maybe I'm reading too much into what's being said. If that's correct it doesn't bode well for legal challenges anywhere that the strategy is used, so blocking passage should be prioritized. But I'm ignorant about that.:o

bussda
09-12-2013, 1:13 PM
You are making the same arguments as kcbrown, that the courts do whatever they want, so the law does not matter. If this was true, then why do anything? We are bound to lose right? I don't believe this is the case (not in the least because other groups don't have the problems with getting past the pleading stage that CGF does), but in any event it's a separate discussion.

Because while the odds are against it there just might be an judge who looks at facts and the law and not the expected outcome.





HUH??? They don't contribute to violence but lower violence rates??:rolleyes:
Proven fact, higher gun ownership rates results in lower rates of violence, and as a corollary, the more gun shops the lower violence rates.

Automobiles are the most heavily regulated items in society.

If a person can go to a car dealer, buy a car, and take possession of it and not have a license, that would make them less regulated then firearms. which require government proof of residency and age, and sometimes government approval before being allowed to purchase.



For some paint you do need to be of age.

I did not say paint, I said paint buckets. Empty or filled.


Your fact structure is severely flawed.

Point out the flaw.

Personally I think the anti-gun ideology is a manufactured political issue designed to appeal to the sort of person who thinks the government can solve fundamental problems with human nature. These people are often socialists (by one name or another). But not all are dishonest weasels who invent problems and "solutions" in order to manipulate people into giving them power.

If you can understand that this has its origins in getting politicians get reelected and communist propaganda, then you understand why it is so persistent

Do you actually think that anyone here is unaware of that? These laws are stupid garbage designed to convince ignorant morons to vote for socialist weasels. We Know. Unfortunately we don't have a legal system that allows laws to be challenged on that basis. The zoning ordinance at issue here, as irritatingly pointless as it may be, is facially constitutional.

CGF either does not understand this, or does not care. That is a problem for every gun owner in this state.

If "We Know.", and are unwilling to challenge an facially constitutional but is in fact unconstitutional law, then what good is that organization? And if the legal system allows that to condition to exist, then what good is that legal system.

I will accuse CGF of being overly optimistic and underestimating the task. They are not apathetic.

taperxz
09-12-2013, 1:14 PM
As the Seventh Circuit correctly noted, neither Heller nor McDonald expressly limits the second amendment’s protections to the home. On the contrary both decisions contain language strongly suggesting if not outright confirming that the second amendment right to keep and bear arms extends beyond the home. Moreover, if Heller means what it says, and “individual self-defense” is indeed “the central component” of the second amendment right to keep and bear arms (Heller, 554 U.S. at 599), then it would make little sense to restrict that right to the home, as “[c]onfrontations are not limited to the home.” Moore, 702 F.3d at 935-36. Indeed, Heller itself recognizes as much when it states that “the right to have arms *** was by the time of the founding understood to be an individual right protecting against both public and private violence.” (Emphasis added.) Heller, 554 U.S. at 593-94


http://www.thetruthaboutguns.com/201...-outside-home/

taperxz
09-12-2013, 1:20 PM
[QUOTE]Proven fact, higher gun ownership rates results in lower rates of violence, and as a corollary, the more gun shops the lower violence rates.

More guns perhaps, Gun stores? You are making up and twisting your argument. Please show me where this study has taken place regarding stores.



If a person can go to a car dealer, buy a car, and take possession of it and not have a license, that would make them less regulated then firearms. which require government proof of residency and age, and sometimes government approval before being allowed to purchase.



Are you saying you can buy a car without registering it? All of which requires a license/ID, proof of insurance, and an address to send re reg to? REALLY???

I did not say paint, I said paint buckets. Empty or filled.

You still made a poor analogy. Don't split hairs and try to defend it.


Point out the flaw.

See above.

If you can understand that this has its origins in getting politicians get reelected and communist propaganda, then you understand why it is so persistent


You seem to think the 2A is the only agenda they have.:TFH:

kcbrown
09-12-2013, 1:24 PM
OH BALONEY! You and i only see that in certain states. The rest of the states in this country are getting along with the 2A just fine.


Are they now?

Then explain NRA v BATF and NRA v McCraw.



Perhaps because there are so few states that dislike the 2A there is a tougher road to SCOTUS that are good clean cases. Additionally, see Illinois!The 7th Circuit is the only circuit that is not in rebellion against the Supreme Court as regards the 2nd Amendment. Even the Fifth Circuit, i.e. the circuit that covers many of the very states you claim have no problem with the 2nd Amendment, is in such rebellion (see the above cases for proof).

taperxz
09-12-2013, 1:27 PM
Are they now?

Then explain NRA v BATF and NRA v McCraw.


The 7th Circuit is the only circuit that is not in rebellion against the Supreme Court as regards the 2nd Amendment. Even the Fifth Circuit, i.e. the circuit that covers many of the very states you claim have no problem with the 2nd Amendment, is in such rebellion (see the above cases for proof).

How about a lower court for you? Lets say a state court;)

http://www.calguns.net/calgunforum/showthread.php?t=822034

http://www.thetruthaboutguns.com/201...-outside-home/

kcbrown
09-12-2013, 1:30 PM
Are you saying you can buy a car without registering it? All of which requires a license/ID, proof of insurance, and an address to send re reg to? REALLY???


Yes, you can.

You need those things if you are to drive it on public roads. And while you need those things in order to drive it on public roads, you can get those things as a matter of right. You can't even get the requisite permits to carry in public as a matter of right.

Seeing how you can't even carry in public as a matter of right, whilst you can drive in public as a matter of right, I think your characterization of cars being "more regulated" than firearms is, at the very least, a bit oversimplistic.



You seem to think the 2A is the only agenda they have.:TFH:Oh, it's most certainly not. All liberties are now in grave danger. But the right to keep and bear arms is in by far the greatest danger, since it is "low hanging fruit" for the other side.

bussda
09-12-2013, 1:34 PM
;)



It isn't a lie, it's simple logic. Bad precedent = Bad. CGF = Bad precedent. CGF = Bad.

OTH

Successful Grassroots Efforts = Good. CGF = Successful Grassroots Efforts. CGF quitting its failing attempts at litigation and focusing on Successful Grassroots Efforts = GOOD.

But what others read from what you write is that CGF is bad, no qualifier for grassroots or litigation. CGF is all BAD, BAD, BAD. And besides, CGF is severely limited in its grassroots (political) efforts.



It's the same deck for everyone. It think it's funny that you are nitpicking the actual successes in that list, while ignoring the complete lack of success, and actual damage caused, on the part of CGF. Why? I mean really? Because they are the "cool kids" or something? I really don't get it.

No it is not the same deck. Do some legal research. Review the published case history that supports the decisions. Then review the unpublished case history that does not support it.

Then there is the advice, and support, like don't talk to law enforcement, legal configuration, not giving permission to search. And if you listened to that advice and get arrested anyway, they will provide assistance. As CGF people have stated many times, most people talk themselves into a felony.

This is the hidden jewel of CGF

kcbrown
09-12-2013, 1:34 PM
How about a lower court for you? Lets say a state court;)

http://www.calguns.net/calgunforum/showthread.php?t=822034

http://www.thetruthaboutguns.com/201...-outside-home/

Oh, wow. That's brand new, hot off the presses. Hadn't seen it yet.

(that second link is broken. Can you fix it, please?)


Of course, that court is under the 7th Circuit's purview, but even so, at least the entire judiciary isn't in rebellion against the Supreme Court on this. :D

taperxz
09-12-2013, 1:34 PM
Yes, you can.

You need those things if you are to drive it on public roads. And while you need those things in order to drive it in public roads, you can get those things as a matter of right. You can't even get the requisite permits to carry in public as a matter of right.

Seeing how you can't even carry in public as a matter of right, whilst you can drive in public as a matter of right, I think your characterization of cars being "more regulated" than firearms is, at the very least, a bit oversimplistic.




Oh, it's most certainly not. All liberties are now in grave danger. But the right to keep and bear arms is in by far the greatest danger, since it is "low hanging fruit" for the other side.

No you can't there is no right to drive (on public roads) A certificate of ownership is required to be recorded and issued to buy a vehicle. Thus, ID, address, ect. In fact, you actually have to sign a waiver of non op in order to not register the vehicle along with an affidavit that you will in fact not operate the vehicle on public roads.

taperxz
09-12-2013, 1:36 PM
Oh, wow. That's brand new, hot off the presses. Hadn't seen it yet.

(that second link is broken. Can you fix it, please?)


Of course, that court is under the 7th Circuit's purview, but even so, at least the entire judiciary isn't in rebellion against the Supreme Court on this. :D

I thought you might like that!:D

The thread got moved to the top of this forum;) I'm sure the links work just fine there.:D

I don't think the link is broken, i think its their website having problems.

taperxz
09-12-2013, 1:38 PM
Oh, wow. That's brand new, hot off the presses. Hadn't seen it yet.

(that second link is broken. Can you fix it, please?)


Of course, that court is under the 7th Circuit's purview, but even so, at least the entire judiciary isn't in rebellion against the Supreme Court on this. :D

Being you are CGN's eternal pessimist i will forgive you.:p

bussda
09-12-2013, 1:52 PM
More guns perhaps, Gun stores? You are making up and twisting your argument. Please show me where this study has taken place regarding stores.


No, think I will let you prove that point.
Besides, simple correlation. High gun ownership, high numbers of retail outlets to service that customer base.




Are you saying you can buy a car without registering it? All of which requires a license/ID, proof of insurance, and an address to send re reg to? REALLY???

Yes, happens all the time. And from licensed dealers. They advertise openly, no license, no problem. I did not talk about insurance or address.



You still made a poor analogy. Don't split hairs and try to defend it.

I specifically stated paint buckets, not paint. The ones about infants drowning in them.




You seem to think the 2A is the only agenda they have.:TFH:

Never stated it was limited to the 2nd, that is you putting an emphasis on that. Just how politicians and the propaganda stacked up.

kcbrown
09-12-2013, 1:55 PM
No you can't there is no right to drive (on public roads)


While the judiciary has stated that driving on public roads is a privilege (more precisely, that it is not a fundamental right. See, e.g., Miller v Reed), the fact of the matter is that the laws, regulations, and even some of the jurisprudence built around the issue all treat the acquisition of the requisite permits as a right at least to the degree that it prevents arbitrary "may issue" schemes for licenses. For instance, revocation of the license appears to require due process, something that cannot be said for carry licenses.



A certificate of ownership is required to be recorded and issued to buy a vehicle. Thus, ID, address, ect. In fact, you actually have to sign a waiver of non op in order to not register the vehicle along with an affidavit that you will in fact not operate the vehicle on public roads.But the point here is that the sale of the vehicle is not denied to you by the government on the basis of lacking a driver's license, insurance, etc., that are required for driving the vehicle on public roads.

While a driver's license acts as ID, it is not necessarily the only ID that is accepted (I would expect a California ID would work just as well).

You may have to sign declarations saying that you won't drive the vehicle on public roads, but that does not translate into arbitrary government authority to forbid you from acquiring the vehicle. And, indeed, it even seems that government doesn't have arbitrary authority to prevent you from driving on public roads, either, something that is very different from the state of affairs as regards carry.

kcbrown
09-12-2013, 1:58 PM
I thought you might like that!:D

The thread got moved to the top of this forum;) I'm sure the links work just fine there.:D

I don't think the link is broken, i think its their website having problems.

When I mouse over the link, the resulting address that shows in my browser has the ellipses in it. The same is not true of the calguns link, even though the text that shows in your message has ellipses for it as well. It appears to me that the second link's URL itself is truncated in the middle. If you go back and edit that message, you may be able to fix the link directly.

You can verify what the actual link is easily enough. Right click on it and select "copy URL", "copy link location", or whatever the equivalent is in your browser. Then paste into a text editor or something. If what you paste has ellipses in it, then the link really is broken.


Being you are CGN's eternal pessimist i will forgive you.:p

Realist! Realist. You gotta use the right terms here. :D

wildhawker
09-12-2013, 3:04 PM
Texiera (CGF) claims that there is no where in Alameda county that can fit this gun store. :laugh:

That's not what is being argued. If you dislike the case, at least have the integrity and courtesy to discuss it accurately.

It is absolutely the case that the ordinance precludes the opening of a gun store in unincorporated Alameda County. We have more than sufficient data -- and a very comprehensive GIS spatial analysis -- to prove this. If you believe this isn't true, please point us to judicially-noticeable evidence supporting your claim.

Can a jurisdiction ban new gun stores from opening within the area it has authority?

Can states or political subdivisions require people to buy guns in another jurisdiction (adjacent or not)?

-Brandon

Tincon
09-12-2013, 3:06 PM
That's not what is being argued. If you dislike the case, at least have the integrity and courtesy to discuss it accurately.

It is absolutely the case that the ordinance precludes the opening of a gun store in unincorporated Alameda County. We have more than sufficient data -- and a very comprehensive GIS spatial analysis -- to prove this. If you believe this isn't true, please point us to judicially-noticeable evidence supporting your claim.

Can a jurisdiction ban new gun stores from opening within the area it has authority?

Can states or political subdivisions require people to buy guns in another jurisdiction (adjacent or not)?

-Brandon

Deja vu all over again. :rolleyes:

If it does not interfere with the exercise of the 2A right, then yes. I really wish this was easier for you to understand.

Note that this doesn't even mean that there are no guns stores in Alameda county. Do you really not understand why this suit failed?

taperxz
09-12-2013, 3:13 PM
That's not what is being argued. If you dislike the case, at least have the integrity and courtesy to discuss it accurately.

It is absolutely the case that the ordinance precludes the opening of a gun store in unincorporated Alameda County. We have more than sufficient data -- and a very comprehensive GIS spatial analysis -- to prove this. If you believe this isn't true, please point us to judicially-noticeable evidence supporting your claim.

Can a jurisdiction ban new gun stores from opening within the area it has authority?

Can states or political subdivisions require people to buy guns in another jurisdiction (adjacent or not)?

-Brandon

Brandon, even if you are right, the court disagrees with you. If the law was not in place prior to trying to start this gun store, then why was a variance needed?

Additionally, The plaintiff stated that they measured on there own and told the county that they were in fact OK with the 500 ft. rule. (but they measured from the door) The county came out and measured from the side of the building closest to the residence. Is you argument that the county changed the rules based on where to measure from or that they arbitrarily changed the law? If they did, what was it before they changed it to 500 ft.? -Just asking

Sakiri
09-12-2013, 3:27 PM
Hey Kc, I'm having a little bit of difficulty understanding exactly what needs to happen from your pov.

You seem excessively pessimistic, and while it may be a realist point of view(I tend to share this usually) I'm not as up in the know as you appear to be and I'm curious as to what exactly you think needs to happen in order for this stuff to stop moving in the negative direction.

Can PM me if you don't want the logistics on the forum for the antis to see or whatever. I got into all this stuff lately and I still have trouble getting my head to wrap around it all. Mostly because the I feel the document says something for a reason, and that it needs to be taken literally.-_-

kcbrown
09-12-2013, 3:56 PM
If it does not interfere with the exercise of the 2A right, then yes. I really wish this was easier for you to understand.


You need to be very careful here.

Interfere is a very loose term as regards an issue such as this. It can encompass anything from even the slightest hindrance to the largest infringement.

Making someone go someplace beyond the confines of the jurisdiction in question is interference if, by "interference", one means placement of a roadblock, however slight, in front of exercise of the right by that same jurisdiction.


I think you guys have an incredibly myopic view of the issue. If any specific jurisdiction can ban gun stores on the basis of facts that are not specific to that jurisdiction (i.e., facts that would make said jurisdiction "special" as regards the issue at hand), then all jurisdictions can, by induction, individually ban gun stores on the very same basis, and the end result is a total ban on gun stores.

Taking your argument to its logical conclusion, if there exists one location anywhere within the state from which one can purchase a firearm, then the right is not being infringed when all other jurisdictions save that one ban gun stores. And were it not for federal law, you would be able to extend that to cover a single location in the country.


So where, exactly, do you foresee infringement beginning here?


Note the parallels. By the very same logic you appear to employ, if there exists a single location in the entire country at which one can vote and no other such location exists by fiat, then the right to vote is not being infringed. If there exists a single location in the entire country at which an abortion can be performed and all other locations are prohibited by law, then the right to an abortion (however distasteful said right may be to some) is not being infringed. If there exists a single bookstore from which one can buy books and all other bookstores everywhere are banned by fiat, then the right to free speech is not being infringed.

If you insist on treating the right to keep and bear arms as a second class citizen among rights, then that treatment is exactly what you're going to get from the government.

kcbrown
09-12-2013, 4:13 PM
Hey Kc, I'm having a little bit of difficulty understanding exactly what needs to happen from your pov.


What needs to happen is approximately what is already happening, though I would argue that perhaps the challenges need to be more frequent and, if possible, done better than they're being done.

We need to exhaust all peaceful avenues towards reinstatement of the right to keep and bear arms. That means pursuing any and all court actions against any and all infringing laws and ordinances. That means, in the event of sufficient failure of the previous, holding a Constitutional Convention. That means attempting to wrest control of at least one of the major political parties from those who seek to destroy liberty.


Just because I believe those things need to be tried doesn't mean I believe they'll succeed. My belief on that is quite the opposite, because overwhelming wealth and power have been concentrated into the hands of the enemy. But that I believe the opposite does not mean I lack any less conviction in the belief of the necessity of trying.



You seem excessively pessimistic, and while it may be a realist point of view(I tend to share this usually) I'm not as up in the know as you appear to be and I'm curious as to what exactly you think needs to happen in order for this stuff to stop moving in the negative direction.
My belief is that what is needed will probably not wind up yielding the needed results. Again, that does not diminish my belief in the need for those actions.

As a realist, I can and do cleanly separate my beliefs in what should happen from my expectations as to the results of those actions. The former is guided by logic, goals, and an understanding (such as it is) of history. The latter is guided by evidence, logic, and an understanding of constraints.

Sakiri
09-12-2013, 4:24 PM
What needs to happen is approximately what is already happening, though I would argue that perhaps the challenges need to be more frequent and, if possible, done better than they're being done.

We need to exhaust all peaceful avenues towards reinstatement of the right to keep and bear arms. That means pursuing any and all court actions against any and all infringing laws and ordinances. That means, in the event of sufficient failure of the previous, holding a Constitutional Convention. That means attempting to wrest control of at least one of the major political parties from those who seek to destroy liberty.


Just because I believe those things need to be tried doesn't mean I believe they'll succeed. My belief on that is quite the opposite, because wealth and power have been concentrated into the hands of the enemy. But that I believe the opposite does not mean I lack any less conviction in the belief of the necessity of trying.


My belief is that what is needed will probably not wind up yielding the needed results. Again, that does not diminish my belief in the need for those actions.

As a realist, I can and do cleanly separate my beliefs in what should happen from my expectations as to the results of those actions. The former is guided by logic, goals, and an understanding (such as it is) of history. The latter is guided by evidence, logic, and an understanding of constraints.

So, you know it needs to be done, but you don't think it'll work.

Going to die trying anyways? I would. One if only as strong as their convictions imo.

I wouldn't even know where to start. So far my only goal in this department is to obtain a LTC, but I can't even move in that direction, or fight any challenges on the way, without the approximately 300+ I'm going to need to dump on the application.

I'm in that list known as "poor people". You know the ones, they often live in the bad part of town and have very good reasons for wanting to carry... but despite living in a relatively "shall issue" county, I can't even come up with the cash to apply, much less fight a denial. That's part of how the state's violating my 2A.

In theory, because I'm on disability, I could pull the disability card about it(fixed income is why I'm incapable of affording it, along with my lack of NRA membership woes) and go that way, but I really *hate* pulling that card. I've done it twice now, both in the equal housing sector, and I *really* hate pulling it. I prefer to not use it as a crutch for rights. I shouldn't *need* one.

As a result, so far, my main way of doing anything is sitting back, watching, and making opposition when I can. Any other suggestions on how to get this ball rolling?

Apologies for the rambling. >< I do this sometimes.

Tincon
09-12-2013, 4:35 PM
If any specific jurisdiction can ban gun stores on the basis of facts that are not specific to that jurisdiction (i.e., facts that would make said jurisdiction "special" as regards the issue at hand), then all jurisdictions can, by induction, individually ban gun stores on the very same basis, and the end result is a total ban on gun stores.

Congratulations, you just made a much better argument than any to be found in the Opposition to Motion to Dismiss filed in this case. Seriously.


Taking your argument to its logical conclusion, if there exists one location anywhere within the state from which one can purchase a firearm, then the right is not being infringed when all other jurisdictions save that one ban gun stores.

That's actually a slightly different argument. And it goes more to the ultimate question, where does infringement actually begin.
The answer is when there are no reasonable alternatives (burden). Then scrutiny is triggered. How unreasonable the alternatives are will have an impact on the scrutiny outcome. The meaning of "reasonable" is something courts decide every day.

kcbrown
09-12-2013, 4:35 PM
So, you know it needs to be done, but you don't think it'll work.

Going to die trying anyways? I would. One if only as strong as their convictions imo.


If it is really necessary and I'm convinced that I can do more through my death than through my (remaining) life, then yes.

That's a higher hurdle than you might think. With life comes chance and opportunity. Death generally ends both of those.



I wouldn't even know where to start. So far my only goal in this department is to obtain a LTC, but I can't even move in that direction, or fight any challenges on the way, without the approximately 300+ I'm going to need to dump on the application.

I'm in that list known as "poor people". You know the ones, they often live in the bad part of town and have very good reasons for wanting to carry... but despite living in a relatively "shall issue" county, I can't even come up with the cash to apply, much less fight a denial. That's part of how the state's violating my 2A.

In theory, because I'm on disability, I could pull the disability card about it(fixed income is why I'm incapable of affording it, along with my lack of NRA membership woes) and go that way, but I really *hate* pulling that card. I've done it twice now, both in the equal housing sector, and I *really* hate pulling it. I prefer to not use it as a crutch for rights. I shouldn't *need* one.

As a result, so far, my main way of doing anything is sitting back, watching, and making opposition when I can. Any other suggestions on how to get this ball rolling?

Apologies for the rambling. >< I do this sometimes.

No worries. As to how to get the ball rolling, contact Brandon (Wildhawker here on the forums. Don't PM, contact him by email. See his signature). While CGF may not necessarily be doing all that well in the litigation arena, they're doing excellent grassroots work. That work comes from volunteers, and that makes this an opportunity for you to contribute.

I wouldn't stop there. There may be other organizations (NRA? CRPA?) that could use donated time as well. The real question is which organization(s) are going to make the best use of your time, that will maximize the return on your investment. On that, I cannot opine, but CGF is probably a good start, at least.

kcbrown
09-12-2013, 4:45 PM
Congratulations, you just made a much better argument than any to be found in the Opposition to Motion to Dismiss filed in this case. Seriously.


This suggests that perhaps making use of volunteers to flesh out arguments prior to their submission to the court might prove a viable and useful approach... :D



That's actually a slightly different argument. And it goes more to the ultimate question, where does infringement actually begin.
The answer is when there are no reasonable alternatives (burden). Then scrutiny is triggered. How unreasonable the alternatives are will have an impact on the scrutiny outcome. The meaning of "reasonable" is something courts decide every day.The problem with the above is this: infringement decisions are made on an individual, case-by-case basis. As such, based on what you're saying here, the point at which a challenge could possibly work at all is the point at which we're well beyond the "infringement" threshold.

It's even worse than that. Because we're talking about individual jurisdictions here, the existence of bans in other jurisdictions provides precedence for upholding the ban being challenged.

I'm not convinced you really understand the power of induction here.


Even worse, courts (even the Supreme Court) tend not to understand inductive arguments. They tend to take a highly myopic view of things. To illustrate the point, consider Eldred v Ashcroft. In that decision, the Supreme Court held that because the act under consideration specifies a finite term limit to copyrights, the act meets the "limited times" limitation on Congress' power to enact copyright law, even though the extension is retroactive and can be extended ad infinitum. Which is to say, the Supreme Court has effectively authorized Congress to extend copyrights infinitely, as long as any given extension stipulates a finite copyright duration. This is because the Supreme Court failed to give sufficient weight to the induction argument.

Tincon
09-12-2013, 5:07 PM
Generally a person does have to be actually burdened by a law in order to challenge the constitutionality of it. It's not all doom and gloom in the long term though. Once the right is firmly established (via much better cases than this) there is no way to ban all gun purchases. For example, lets say all the FFLs in a reasonable travel distance to many people had to close due to zoning restrictions. That opens a challenge to the 68 GCA (or the zoning laws, you can sue both and let the court figure it out). If they close one door, it opens another. Just like with CCW and the open carry ban.

kcbrown
09-12-2013, 5:26 PM
Generally a person does have to be actually burdened by a law in order to challenge the constitutionality of it. It's not all doom and gloom in the long term though. Once the right is firmly established (via much better cases than this) there is no way to ban all gun purchases.


You can't establish the right through litigation unless there exist individual laws that are actually regarded as infringement.

Where do such laws exist as regards purchase? Obviously not California, else they'd already be challenged by M&A, right? :D



For example, lets say all the FFLs in a reasonable travel distance to many people had to close due to zoning restrictions. That opens a challenge to the 68 GCA (or the zoning laws, you can sue both and let the court figure it out). If they close one door, it opens another. Just like with CCW and the open carry ban.But you can't challenge the zoning ordinance unless you have standing, and you can't have standing unless you intend to open a gun shop, and because it is the buyer whose rights are being burdened and not the seller's (were it the seller's rights that were being burdened, then the "you can buy a gun outside the county" argument would hold no water, for the burden on the seller is with respect to his ability to sell firearms, not to buy them), I see no way of getting past the standing issue here unless you can somehow make a compelling argument that ties the rights of one to the rights of the other. But courts don't go for such arguments, because that requires inference and indirection, and courts will only protect rights that are directly violated.

As to a challenge to the GCA, good luck with that. The court will just say that it's a "longstanding prohibition" and that'll be that. Even if it doesn't, the challenge would have to be an "as applied" one. I'm not sure how that would yield anything useful even if it were won. Are there cases where an "as applied" challenge yields the same result that a facial challenge would?


In other words, I very strongly disagree with your claim that all is not doom and gloom on this. I see no logical way forward here that conforms to your requirements. But as always, I am willing to be convinced otherwise. :D

Tincon
09-12-2013, 5:29 PM
heh, new sig, that should be your catch phrase though. ;)

kcbrown
09-12-2013, 5:38 PM
heh, new sig, that should be your catch phrase though. ;)

LOL!!!!!

:rofl2:


I like it! Very much. You should definitely keep that in your sig. :D

chainsaw
09-12-2013, 5:53 PM
Can states or political subdivisions require people to buy guns in another jurisdiction (adjacent or not)?

There is a variety of places in Alameda County where one can buy guns. Didn't the plaintiff in this matter already operate a gun store in unincorporated Alameda County?

There is also a variety of places in Alameda County where on could start a new gun store. Alas, not in the unincorporated part of Alameda County.

Your argument doesn't fit the situation on the ground.

chainsaw
09-12-2013, 6:05 PM
If any specific jurisdiction can ban gun stores on the basis of facts that are not specific to that jurisdiction (i.e., facts that would make said jurisdiction "special" as regards the issue at hand), then all jurisdictions can, by induction, individually ban gun stores on the very same basis, and the end result is a total ban on gun stores.

Careful. You are using the categorical imperative (a.k.a. golden rule) here: The same ethical reasoning that allows or disallows Alameda County to ban gun stores must be used to allow all neighboring counties to allow or disallow gun stores.

But that's not how the law works. While it is true that the categorical imperative is probably the single most important piece of ethics, it is not an actionable principle of law. If you go to court and make that argument, the court will simply reply with "you don't have standing, since gun stores are allowed and do exist in Contra Costa, Santa Clara and Stanislaus counties".

Now, as soon as the VERY LAST county within a reasonable distance completely disallows gun stores (which has not been contemplated by any county, in particular since most gun stores are in cities, not in the unincorporated area), you can make that argument. We are very far away from that.

Lesson: Maxims of morals are not necessarily the law.

Taking your argument to its logical conclusion, if there exists one location anywhere within the state from which one can purchase a firearm, then the right is not being infringed when all other jurisdictions save that one ban gun stores. And were it not for federal law, you would be able to extend that to cover a single location in the country.

Why stop at the country border? After all, if there is a gun store on the back side of the moon, nobody stops you from chartering a rocket. This is a nonsensical strawman argument, exactly as silly as the strawman argument that gun stores must be within convenient walking distance to everyone who is too disabled to drive a car.

As usual with amateurs, you are treating thing as if they were black or white. The law is not like mathematics. Any court would make the following test: Is there a gun store in a reasonable distance? And the question of what is reasonable would be argued in front of the court; so some it might be 5 minutes, to others it might be 5 hours. The judge will find a compromise, that what she is paid the big bucks for.

kcbrown
09-12-2013, 6:30 PM
Careful. You are using the categorical imperative (a.k.a. golden rule) here: The same ethical reasoning that allows or disallows Alameda County to ban gun stores must be used to allow all neighboring counties to allow or disallow gun stores.


No, I'm using the fact that courts operate on (or claim to operate on) precedence.

Governments restrict that which they can get away with restricting. The purpose of enumerated protection of a right is to provide a reliable means of preventing the government from enacting restrictions that intrude upon the protected right, or of overturning those restrictions if they are enacted.

If a challenge to the law/ordinance in question on the basis of it infringing upon a protected right fails in court, then it means that precedence dictates that such challenges will likewise fail in other venues, and therefore the protection of the right cannot stop any equivalent law anywhere that contraindicating jurisprudence does not already exist. That is not some sort of moral imperative at work, that is logic and, in particular, induction.



Now, as soon as the VERY LAST county within a reasonable distance completely disallows gun stores (which has not been contemplated by any county, in particular since most gun stores are in cities, not in the unincorporated area), you can make that argument. We are very far away from that.
That was my point, but you fail to understand that even under the circumstances you describe, the challenge will fail precisely because precedent has been set, if not through previous court action, then by legislative history itself.

Courts are highly deferential to the "longstanding" status of the law, and to the notion that the existence of a law for an extensive period of time automatically lends the law legitimacy over and beyond that which the law already has.



Why stop at the country border? After all, if there is a gun store on the back side of the moon, nobody stops you from chartering a rocket. This is a nonsensical strawman argument, exactly as silly as the strawman argument that gun stores must be within convenient walking distance to everyone who is too disabled to drive a car.
No, it's not, because you're presuming that history doesn't count. But I assure you, it does, and to our detriment.

The "reasonableness" of a law is measured in large part by the burden that the society in question is already used to. Once you are used to being required to drive 25 miles to get to a gun store, it's suddenly "reasonable" to require someone to drive 30. Then 40. Then 50. Then 65. Then 80.



As usual with amateurs, you are treating thing as if they were black or white. The law is not like mathematics. Any court would make the following test: Is there a gun store in a reasonable distance? And the question of what is reasonable would be argued in front of the court; so some it might be 5 minutes, to others it might be 5 hours. The judge will find a compromise, that what she is paid the big bucks for.Yes, and that "compromise" will be a measure of what that judge is actually used to at that point in time or, if the judge has no direct experience in the matter, what he/she believes the people in his/her jurisdiction are used to. It is in this way that regulations get ever more onerous over time. People adapt themselves well to tyranny. It is, after all, the historically dominant state of things.

You would be wise to learn from the copyright law experience, to see what the "compromise" you speak of actually looks like.

chainsaw
09-12-2013, 7:15 PM
No, I'm using the fact that courts operate on (or claim to operate on) precedence.

Wrong. To begin with, districts (or state superior courts) don't set binding precedent anyhow. Only appeals courts and higher do. Which is why appealing a negative decision can be such a bad idea (and that's why I was so delighted when wildhawker announced that this decision will be appealed).

And the facts are different. Say our whole state consisted of three counties, called A, B, and C. County A is in the middle of the two, and bans gun stores first. CGF goes to court, and judge says "that's legal, it's only a short hop on the freeway to county B or C". County B bans gun stores, judge says the same thing about county C, a slightly longer drive. Now county C bans gun stores. You sue. Judge tries to say "that's OK, I'm just following precedent from counties A and B". Now you reply with "Your honor, the facts of the cases A and B were different, as in those cases it was easily possible to drive to a remaining county. This case is distinguishable, because there is no county left". You win, because the precedent doesn't fit (read up on the concept of distinguishings facts sometime).

The "reasonableness" of a law is measured in large part by the burden that the society in question is already used to.

There is some danger there. For example, with all the paperwork we have to do already, buying a gun does take about an hour and a half (it can be faster, but usually it isn't). So a judge would probably find that an extra 15 minutes of driving roundtrip is not an unreasonable burden, while an extra 3 hours would be.

Once you are used to being required to drive 25 miles to get to a gun store, it's suddenly "reasonable" to require someone to drive 30. Then 40. Then 50. Then 65. Then 80.

Yes, and that "compromise" will be a measure of what that judge is actually used to at that point in time or, if the judge has no direct experience in the matter, what he/she believes the people in his/her jurisdiction are used to. It is in this way that regulations get ever more onerous over time.

Two comments. Nowhere does the second amendment say that the right to K.B.A. must be conveniently exercisable. It says "not infringed", which has been interpreted as "not banned".

Second, courts (judges and/or juries) decide facts, based on the evidence presented to them. If a competent attorney were to present facts that indicate that the right has been infringed, by a gradual increase of burdens that has now reached the point that the exercise of the right is de-facto impossible to reasonable people, the court will have no choice but to find that way.

You would be wise to learn from the copyright law experience, to see what the "compromise" you speak of actually looks like.
I actually have no experience personally in copyright law, but I read up on it. It is a very different situation, because in most cases the balance of power between the parties is so out of whack: Disney (and the ever increasing age rule, to keep Mickey protected), versus individuals or small companies. But that effect happens in most areas of law.

In the case of copyright, we seem to have a societal consensus (as much as I disagree with it) that wants protection to be expanded. Here in California, we greatly benefit from that (both in Silicon Valley, often through copyright's bigger family IP, and in movieland down south). The incrementalism you decry seems to reflect the will of the shakers and movers. Sadly.

wildhawker
09-12-2013, 7:48 PM
There is a variety of places in Alameda County where one can buy guns. Didn't the plaintiff in this matter already operate a gun store in unincorporated Alameda County?

There is also a variety of places in Alameda County where on could start a new gun store. Alas, not in the unincorporated part of Alameda County.

Your argument doesn't fit the situation on the ground.

Actually, you apparently don't even know what or where the ground is. Consider the date of enactment of the ordinance versus the date individual plaintiffs secured a previous FFL and license to operate.

-Brandon

curtisfong
09-12-2013, 7:56 PM
In the case of copyright, we seem to have a societal consensus (as much as I disagree with it) that wants protection to be expanded. Here in California, we greatly benefit from that (both in Silicon Valley, often through copyright's bigger family IP, and in movieland down south). The incrementalism you decry seems to reflect the will of the shakers and movers.

There are a lot of things wrong with this statement, but it is offtopic so I will restrain myself :/

kcbrown
09-12-2013, 8:27 PM
Wrong. To begin with, districts (or state superior courts) don't set binding precedent anyhow.


Binding precedent, no. Informative precedent, yes. And in the absence of some other jurisprudence to the contrary, courts will use that informative precedent as the basis of their decisions unless, of course, they actually want to rule otherwise.

But seeing how we're talking about firearm laws here in California, the courts will, of course, rule in favor of upholding the law especially when there is "informative" precedent to that effect already in place.

Courts rule against "informative" precedent when they desire a particular outcome, which occurs when those issuing the ruling have an interest in the subject. That is highly likely to be the case here, because the nature of this issue is even more polarizing than the one of whether or not minorities should have the same rights as everyone else.



Only appeals courts and higher do. Which is why appealing a negative decision can be such a bad idea (and that's why I was so delighted when wildhawker announced that this decision will be appealed).
Whether or not appealing a negative decision is a bad idea is going to depend largely on whether or not there's likely to be another later opportunity to litigate the same issue elsewhere. But in this case, it's more complicated than that, because we're on a clock (much to your delight, no doubt). Sans the clock, I would be in agreement that appealing this decision is probably a bad idea. But after factoring in the clock, it may be the only way a positive ruling could possibly be had on the issue.



And the facts are different. Say our whole state consisted of three counties, called A, B, and C. County A is in the middle of the two, and bans gun stores first. CGF goes to court, and judge says "that's legal, it's only a short hop on the freeway to county B or C". County B bans gun stores, judge says the same thing about county C, a slightly longer drive. Now county C bans gun stores. You sue. Judge tries to say "that's OK, I'm just following precedent from counties A and B". Now you reply with "Your honor, the facts of the cases A and B were different, as in those cases it was easily possible to drive to a remaining county. This case is distinguishable, because there is no county left". You win, because the precedent doesn't fit (read up on the concept of distinguishings facts sometime).
Except for there to be no county left, there has to be a ban on gun stores in all other counties in the state. That is precisely the situation you claim is a "nonsensical strawman". Well, which is it? Nonsensical, or sensical?

No, you are doing nothing to address my argument here, which is predicated precisely upon the observation that the similarity of facts between iterations will enable induction to yield complete or near-complete infringement.



There is some danger there. For example, with all the paperwork we have to do already, buying a gun does take about an hour and a half (it can be faster, but usually it isn't). So a judge would probably find that an extra 15 minutes of driving roundtrip is not an unreasonable burden, while an extra 3 hours would be.
The emphasized is precisely the problem, and precisely my point. It's the amount of extra time involved relative to what people are already used to that is used to judge the "reasonableness" of the challenged law.

Again, you are doing nothing to address my argument here. In fact, you're reinforcing it.



Two comments. Nowhere does the second amendment say that the right to K.B.A. must be conveniently exercisable. It says "not infringed", which has been interpreted as "not banned".
And nowhere does the 1st Amendment say that the right to free speech must be conveniently exercisable, either. In fact, it is even weaker than the 2nd Amendment, since it says "Congress shall pass no law ...".

That does not suddenly mean that counties get to ban all bookstores because "you can go to a bookstore in another county".



Second, courts (judges and/or juries) decide facts, based on the evidence presented to them. If a competent attorney were to present facts that indicate that the right has been infringed,
Stop right there.

The judgment of facts are about whether or not the facts presented are true, not whether they indicate infringement. The latter is a question of law, not of fact.



by a gradual increase of burdens that has now reached the point that the exercise of the right is de-facto impossible to reasonable people, the court will have no choice but to find that way.
Of course the court will have a choice. Just as the 4th Circuit court had a choice in Woollard. Just as the 2nd Circuit court had a choice in Kachalsky.

You don't get it: nobody believes their own views to be unreasonable. Nobody. If a lawmaking body believes it to be "reasonable" to pass a law, then you can bet that there will be courts that will hold the same views as the lawmaking body. Whether or not the court the law is in front of will hold that the law in question is unreasonable is purely a function of who is judging the law.

This is precisely what you get when you insist upon judging the law with a subjective metric. It turns the nation into one of men, not of laws. That is highly desirable from the point of view of those who wish to control others. It is decidedly undesirable from the point of view of those of us who actually value liberty.



I actually have no experience personally in copyright law, but I read up on it. It is a very different situation, because in most cases the balance of power between the parties is so out of whack: Disney (and the ever increasing age rule, to keep Mickey protected), versus individuals or small companies. But that effect happens in most areas of law.
And here, the balance of parties is also similarly out of whack: between individuals or small companies and the government itself. There is no real difference to be found here.



In the case of copyright, we seem to have a societal consensus (as much as I disagree with it) that wants protection to be expanded. Here in California, we greatly benefit from that (both in Silicon Valley, often through copyright's bigger family IP, and in movieland down south). The incrementalism you decry seems to reflect the will of the shakers and movers. Sadly.And so too do laws that infringe on all manner of rights. You don't seriously think those laws get passed at the behest of the powerless, do you?

RipVanWinkle
09-12-2013, 8:30 PM
Wrong. To begin with, districts (or state superior courts) don't set binding precedent anyhow. Only appeals courts and higher do. Which is why appealing a negative decision can be such a bad idea (and that's why I was so delighted when wildhawker announced that this decision will be appealed).

And the facts are different. Say our whole state consisted of three counties, called A, B, and C. County A is in the middle of the two, and bans gun stores first. CGF goes to court, and judge says "that's legal, it's only a short hop on the freeway to county B or C". County B bans gun stores, judge says the same thing about county C, a slightly longer drive. Now county C bans gun stores. You sue. Judge tries to say "that's OK, I'm just following precedent from counties A and B". Now you reply with "Your honor, the facts of the cases A and B were different, as in those cases it was easily possible to drive to a remaining county. This case is distinguishable, because there is no county left". You win, because the precedent doesn't fit (read up on the concept of distinguishings facts sometime).



There is some danger there. For example, with all the paperwork we have to do already, buying a gun does take about an hour and a half (it can be faster, but usually it isn't). So a judge would probably find that an extra 15 minutes of driving roundtrip is not an unreasonable burden, while an extra 3 hours would be.



Two comments. Nowhere does the second amendment say that the right to K.B.A. must be conveniently exercisable. It says "not infringed", which has been interpreted as "not banned".

Second, courts (judges and/or juries) decide facts, based on the evidence presented to them. If a competent attorney were to present facts that indicate that the right has been infringed, by a gradual increase of burdens that has now reached the point that the exercise of the right is de-facto impossible to reasonable people, the court will have no choice but to find that way.


I actually have no experience personally in copyright law, but I read up on it. It is a very different situation, because in most cases the balance of power between the parties is so out of whack: Disney (and the ever increasing age rule, to keep Mickey protected), versus individuals or small companies. But that effect happens in most areas of law.

In the case of copyright, we seem to have a societal consensus (as much as I disagree with it) that wants protection to be expanded. Here in California, we greatly benefit from that (both in Silicon Valley, often through copyright's bigger family IP, and in movieland down south). The incrementalism you decry seems to reflect the will of the shakers and movers. Sadly.

chainsaw, kcbrown,

A humble suggestion. Would you guys consider shutting up for a little while? By now everyone's suitably impressed with your incisive logic and brilliant rhetoric, but I don't think you're advancing the discussion of the subject of this thread in any useful way. You might PM each other to continue your conversation, or arrange a meeting in a private place where you can piss on each others' shoes, or whatever action you might settle on to conclude your arguments. I'm not sure what others are experiencing while reading this stuff, but I'm overcome with boredom. Maybe you could take up Fabio Gets Goosed's unanswered question about CGF's expertise in land use law, you know, his motives for asking that, who he really is, etc. The possibilities are endless!:rolleyes:

chainsaw
09-12-2013, 8:30 PM
Actually, you apparently don't even know what or where the ground is. Consider the date of enactment of the ordinance versus the date individual plaintiffs secured a previous FFL and license to operate.

-Brandon

Above you asked the rhetorical question: Can Alameda ban gun stores in its county?

So you are telling me that (a) there are no gun stores in Alameda county after this suit, and (b) no new ones can be opened?

As far as I can see, Alameda county has not banned gun stores yet. The denied one particular application in the unincorporated part of the county. Other gun stores continue to exist, and new ones could be opened, perhaps not in the unincorporated part of the county.

AlexDD
09-12-2013, 8:33 PM
From the case where LA got to keep its adult book store ordinance. It is situational, I am no lawyer and out of context but how does one think Kennedy's quote would be applied to gun stores?

"Kennedy said “Speech can produce tangible consequences. It can change minds. It can prompt actions. These primary effects signify the power and the necessity of free speech. Speech can also cause secondary effects, however, unrelated to the impact of the speech on its audience. A newspaper factory may cause pollution, and a billboard may obstruct a view. These secondary consequences are not always immune from regulation by zoning laws even though they are produced by speech. Municipal governments know that high concentrations of adult businesses can damage the value and the integrity of a neighborhood. The damage is measurable; it is all too real. The law does not require a city to ignore these consequences if it uses its zoning power in a reasonable way to ameliorate them without suppressing speech. A city’s “interest in attempting to preserve the quality of urban life is one that must be accorded high respect...”

curtisfong
09-12-2013, 8:37 PM
chainsaw, kcbrown,

A humble suggestion. Would you guys consider shutting up for a little while? By now everyone's suitably impressed with your incisive logic and brilliant rhetoric, but I don't think you're advancing the discussion of the subject of this thread in any useful way. You might PM each other to continue your conversation, or arrange a meeting in a private place where you can piss on each others' shoes, or whatever action you might settle on to conclude your arguments. I'm not sure what others are experiencing while reading this stuff, but I'm overcome with boredom. Maybe you could take up Fabio Gets Goosed's unanswered question about CGF's expertise in land use law, you know, his motives for asking that, who he really is, etc. The possibilities are endless!:rolleyes:

I disagree strongly. I am enjoying this discussion. I am disappointed that chainsaw isn't getting kcbrown's point (although i think kcbrown understands what chainsaw is saying), but I hold out hope that chainsaw is starting to catch on.

In particular kcbrown's point about "reasonableness" and the legislature.. given that chainsaw represents the most likely enemy you have to advancing 2A rights, i'd hope you would be a bit more open to having this discussion here. It isn't as if there is a more "important" topic in this thread; you're free to stop reading right here.

RipVanWinkle
09-12-2013, 9:02 PM
Edited:

"Kennedy said “Gun stores can produce tangible consequences. They can change minds. They can prompt actions. These primary effects signify the power and the necessity of gun stores. Gun stores can also cause secondary effects, however, unrelated to the impact of the gun stores on their audience. A gun factory may cause pollution, and a gun store billboard may obstruct a view. These secondary consequences are not always immune from regulation by zoning laws even though they are produced by gun stores. Municipal governments know that high concentrations of gun stores can damage the value and the integrity of a neighborhood. The damage is measurable; it is all too real. The law does not require a city to ignore these consequences if it uses its zoning power in a reasonable way to ameliorate them without suppressing gun stores. A city’s “interest in attempting to preserve the quality of urban life is one that must be accorded high respect...”

Actually you could substitute almost anything for "speech" in that passage and it makes some sense. Probably because it's all couched in generalities. The one bright spot is the sentence: "The damage is measurable." He should have spent a lot more time on that, but lawyers hate measurement.

FABIO GETS GOOSED!!!
09-12-2013, 9:14 PM
Maybe you could take up Fabio Gets Goosed's unanswered question about CGF's expertise in land use law...

I wouldn't hold your breath waiting for an answer. I'm sure that if we ever do get an answer we will all marvel at the breadth and depth of CGF's expertise in land use litigation. We may not be able to fully appreciate it though not having done land use litigation ourselves.

RipVanWinkle
09-12-2013, 10:32 PM
I disagree strongly. I am enjoying this discussion. I am disappointed that chainsaw isn't getting kcbrown's point (although i think kcbrown understands what chainsaw is saying), but I hold out hope that chainsaw is starting to catch on.

In particular kcbrown's point about "reasonableness" and the legislature.. given that chainsaw represents the most likely enemy you have to advancing 2A rights, i'd hope you would be a bit more open to having this discussion here. It isn't as if there is a more "important" topic in this thread; you're free to stop reading right here.

I'm sorry, but I come from a scientific background and these arguments using incurably vague terms ("reasonableness", for christ's sake!!) and persistent, obstinate avoidance of quantification in factual statements just drive me nuts. Of course they never end; when vagueness rules equivocation dominates and nothing ever gets settled. It's so tedious!

Occasionally something interesting happens, however. I think back in post #97 kcbrown caught Fabio equivocating in this passage:

You can play that game if you want to. I'll have no part of it, for it is nothing short of Doublespeak.


No, Heller said:

Quote:
Originally Posted by District of Columbia v Heller, 128 S. Ct. 2783 at 2821
"The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon."
Either scrutiny is used to decide on a case-by-case basis whether the right is really worth insisting upon, or it isn't. Since scrutiny pits government interest against the exercise of a right and is used to decide on a case by case basis whether or not to allow the law to stand even after the court has decided that the law infringes upon the right, it is ipso facto incompatible with the above.

So we are left with this: either the Supreme Court meant what it said in the above, or it didn't. Since they said the above, we have to presume they meant it until presented with post-Heller evidence to the contrary.


Fabio continued to dismiss this as drivel, but he never actually attempted to address these points in detail, then went off in another direction.

Tincon
09-12-2013, 10:40 PM
Fabio continued to dismiss this as drivel, but he never actually attempted to address these points in detail, then went off in another direction.

Allow me to step in then:

Originally Posted by District of Columbia v Heller, 128 S. Ct. 2783 at 2821
The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.

Either scrutiny is used to decide on a case-by-case basis whether the right is really worth insisting upon, or it isn't. Since scrutiny pits government interest against the exercise of a right and is used to decide on a case by case basis whether or not to allow the law to stand even after the court has decided that the law infringes upon the right, it is ipso facto incompatible with the above.


The error here is in the meaning of this phrase "whether the right is really worth insisting upon." It does not mean that there is no balancing test (there always is, with all rights) but rather that the balancing test (scrutiny) is always applied where the right is infringed (as opposed to the right being ignored because it is inconvenient). The Court takes some issue with the dissent's proposed "interest balancing test" which would have essentially nullified the right, but clearly distinguishes this test from the established standards of scrutiny. Of course all the scrutiny standards are balancing tests as well, but of a very different character.

kcbrown
09-12-2013, 11:06 PM
The error here is in the meaning of this phrase "whether the right is really worth insisting upon." It does not mean that there is no balancing test (there always is, with all rights) but rather that the balancing test (scrutiny) is always applied where the right is infringed (as opposed to the right being ignored because it is inconvenient).


But that is not an error in my characterization.

Deciding on whether or not to insist on the right means deciding whether or not the right prevails when infringement of the right has already been acknowledged. That is so since failure to insist on the right in that circumstance means the infringing law, and not the right, must prevail, while insisting upon the right means that the right, and not the law, prevails. For invalidation of an infringing law is precisely what it means for the right to be operative in the judicial context.

To say otherwise is to attempt to claim that a right can exist and be null and void all in the same instant, a contradiction, for a right is null and void if it does not prevail in the face of infringement of it.



The Court takes some issue with the dissent's proposed "interest balancing test" which would have essentially nullified the right, but clearly distinguishes this test from the established standards of scrutiny.
The Court made no such distinction, because it did not mention scrutiny at all in that context (save for noting that Breyer criticized them for failing to establish a level of scrutiny). You presume that it made a distinction, because you cannot (for whatever reason) acknowledge that the Court is capable of being inconsistent with its own past.

I have no such limitations.



Of course all the scrutiny standards are balancing tests as well, but of a very different character.Are they now?

Do tell: how are they of a "different character"?

And no, unlike what FGG would be inclined to do, you cannot use the mere fact that the Court has used them in the past as proof that they are different.

Once you are done showing that they are of a "different character" (if, indeed, you can do so), you must then show how that difference in character maps to these interest balancing tests not being used to decide, on a case by case basis, whether the right in question is really worth insisting upon. In other words, you must then show how the latter derives from the former.

kcbrown
09-12-2013, 11:13 PM
The error here is in the meaning of this phrase "whether the right is really worth insisting upon." It does not mean that there is no balancing test (there always is, with all rights)

The emphasized is incorrect.

As the Supreme Court noted in Heller, the people have already performed the balancing in question by enumerating the right.

The only time that any sort of balancing of an enumerated right can legitimately happen is when exercise of that right infringes upon another right, i.e. upon something else that is an equal to it. But scrutiny does not address that at all, for it talks about government interest as being on the other side of the equation, and not another right.

Tincon
09-12-2013, 11:31 PM
Well I guess the issue here is I'm explaining how the law works, and you are explaining how logic works.

The emphasized is incorrect.

As the Supreme Court noted in Heller, the people have already performed the balancing in question by enumerating the right.

The only time that any sort of balancing of an enumerated right can legitimately happen is when exercise of that right infringes upon another right, i.e. upon something else that is an equal to it. .

Not really. Read Matthews v Eldridge.

kcbrown
09-12-2013, 11:47 PM
Well I guess the issue here is I'm explaining how the law works, and you are explaining how logic works.


Ah, but by saying this, you are implying that the way the law works is inherently illogical, for that is what it means for there to be a disconnect between law and logic.

If your view on scrutiny is correct, then mine must be incorrect. But because mine is derived from logic, then it follows that for your view to prevail, the law surrounding scrutiny must be inherently illogical.

And if that is so, then logic cannot, except through happenstance, prevail in deliberations about the law where scrutiny is involved. And that renders the law surrounding and deriving from scrutiny completely arbitrary, since it renders it unassailable in the face of reasoning.

If we go down that path to its end, we must conclude that reasoning cannot prevail (except through happenstance) when applied in the context of rights where scrutiny is involved. And that leaves us with one question:

What would you suggest we use in place of reasoning here?


In any case, if you insist that the law should proceed against reasoning, then I would suggest that the war is long lost, and that there really isn't any point to challenging any law unless you have some sort of "special relationship" with the person who will be judging the case. That's because absent persuasion through reason, there is only bribery and blackmail. A judiciary that responds to that instead of to reason is a judiciary that is utterly corrupt, the antithesis of what the country was founded for.


Unless you insist on going down that path, we're left with the words used, their meanings, and the conclusions that can logically be derived from them. The words the Supreme Court used in Heller have meaning that, by your very own assertion, come straight from the dictionary. That has consequences. That you don't like the consequences or their implications isn't my problem. What is my problem is the distress I feel when I see one of our own (you) go down the path of the dark side, as you appear to be doing. For what else can it be when you are willing to trade that which is most sacrosanct, our rights, and substitute for them a watered down, politically correct caricature of same, all in the name of saving face of the system you are training yourself to operate within?



Not really. Read Matthews v Eldridge.That the Supreme Court has engaged in precisely that which I say is illegitimate does not disprove my claim. It only shows that the Supreme Court is willing to dispense with the notion of rights altogether when it suits the Court's purposes, and substitute something less in its stead. It's not like the Court hasn't done that before (e.g., Slaughterhouse).

There is a better term for that which would be substituted: privileges.

Tincon
09-13-2013, 12:58 AM
But because mine is derived from logic, then it follows that for your view to prevail, the law surrounding scrutiny must be inherently illogical.

I'd say "not strictly logical", but as it's either logical or not, you have a point.

And if that is so, then logic cannot, except through happenstance, prevail in deliberations about the law where scrutiny is involved. And that renders the law surrounding and deriving from scrutiny completely at least partially arbitrary, since it renders it unassailable in the face of entirely logical reasoning.
fixed that for you.

If we go down that path to its end, we must conclude that reasoning cannot prevail (except through happenstance) when applied in the context of rights where scrutiny is involved. And that leaves us with one question:

What would you suggest we use in place of reasoning here?


Knowledge and understanding of the law. While the law itself is not entirely logical, it is consistent enough to be fairly predictable. Call it "legal reasoning" as opposed to "reasoning". They really aren't quite the same. So if you understand how the law works you can engage in rational discussions (and even predictions) of legal outcomes.

kcbrown
09-13-2013, 2:32 AM
I'd say "not strictly logical", but as it's either logical or not, you have a point.


And that has nasty implications. See below.



Knowledge and understanding of the law. While the law itself is not entirely logical, it is consistent enough to be fairly predictable. Call it "legal reasoning" as opposed to "reasoning". They really aren't quite the same. So if you understand how the law works you can engage in rational discussions (and even predictions) of legal outcomes.But what we're speaking of here is the very heart of the application of rights to the law. If even that is arbitrary as you appear to acknowledge here, then rights have absolutely no meaning whatsoever, for the very purpose of something being a right is to shield the rightholder from arbitrary interference with the right, from arbitrary interference with his real world actions under the right.

So what you're saying amounts to a concession of defeat, an acknowledgement that what we're dealing with is really no longer rights at all, but some freakish offspring that serves the state (which is now the entity that both defines and rules upon the law) instead of the people.

What we're dealing with now is much more properly called privileges. Yes, the legal system may have "redefined" the term "rights" to be that, but to give something deference on the basis of what it's called instead of what it is is to engage in the very practice that 1984 warns about: Doublespeak.


Like it or not, logic is the proper tool for analyzing all of this. Not because it is a predictor of how a court will rule, but because it is a predictor of how the law and the rulings surrounding it will affect the real world. For logic is not an arbitrary, made-up thing, but derives directly from the cause and effect nature of the real world. It derives from observation.

You have fallen into the trap that has sent our nation straight into the abyss. You have allowed the law to supersede the real world itself, have accorded the law and the arbitrary, made up constructions that surround it greater import than the very purpose that it was intended to serve through the founding of the nation. And for that reason, I am quite distressed.

As I said:


Unless you insist on going down that path, we're left with the words used, their meanings, and the conclusions that can logically be derived from them. The words the Supreme Court used in Heller have meaning that, by your very own assertion, come straight from the dictionary. That has consequences. That you don't like the consequences or their implications isn't my problem. What is my problem is the distress I feel when I see one of our own (you) go down the path of the dark side, as you appear to be doing. For what else can it be when you are willing to trade that which is most sacrosanct, our rights, and substitute for them a watered down, politically correct caricature of same, all in the name of saving face of the system you are training yourself to operate within?



That there may be some predictability of how the courts will rule on a given issue is no solace in the face of the fact that by admitting what you have, you have confirmed the very thing I have been saying all this time: the courts are going to rule as they please no matter what the law or, especially, the Constitution, says and no matter how compelling our arguments would be to someone who heeds reason. That is the direct consequence of legal "reasoning" (I am loathe to use that term in this context, as doing so is yet another application of Doublespeak) regarding "rights" containing within it the element of arbitrariness that it does.

Tincon
09-13-2013, 5:47 AM
No need to lecture me on logic, I understand perfectly well how the outcomes of these cases will affect the real world. If there is problem here, it is a general lack understanding about how the real world, and the law, effect the outcome of these cases. The legal process is part of reality, it's time to accept that.

The courts generally rule according to the law, not "as they please", nor according to logic. Until you understand the difference, you will remain ignorant of the legal process. If you have it in your head that at one point this government, or any other government in history, recognized "unlimited rights", and using solely logic ensured every citizen received them; then you are delusional.

So what you're saying amounts to a concession of defeat, an acknowledgement that what we're dealing with is really no longer rights at all, but some freakish offspring that serves the state (which is now the entity that both defines and rules upon the law) instead of the people.

The law is serving the exact purpose it was always intended to serve, preserving the government and the status quo. Welcome to the "real world". That does not mean I have accepted defeat. It means I'm willing to intelligently work within the system to preserve my (our) rights. Someday the day will come when that isn't possible anymore. Maybe in 10 years, maybe in 500. But for now, all the options are still on the table.

Finally, for the legal option to be effective, it needs to be managed by people who understand it. So we are back to the point of this thread.

FABIO GETS GOOSED!!!
09-13-2013, 6:10 AM
Fabio continued to dismiss this as drivel, but he never actually attempted to address these points in detail....

Boredom avoidance. Once it was conceded that one usage was being substituted for another, that confirmed my initial observation (http://www.calguns.net/calgunforum/showpost.php?p=12285459&postcount=90). As a side note, there is academic disagreement whether scrutiny is a balancing test even under a "plain meaning" usage. Whatever the end result of that debate, Heller distinguished scrutiny from the "interest balancing" approach it was rejecting, which means that if you respect the opinion's usage, you cannot conclude that it was also rejecting scrutiny.

chainsaw
09-13-2013, 6:59 AM
I'm out for about 3 days. The fact that I'm not replying to this thread doesn't mean that I think it's irrelevant, just that I have other things to do.

In reality, kcbrown and me are in near complete agreement on what the result of litigation will be, but we philosophically disagree on the reasons.

RipVanWinkle
09-13-2013, 7:27 AM
Boredom avoidance. Once it was conceded that one usage was being substituted for another, that confirmed my initial observation (http://www.calguns.net/calgunforum/showpost.php?p=12285459&postcount=90). As a side note, there is academic disagreement whether scrutiny is a balancing test even under a "plain meaning" usage. Whatever the end result of that debate, Heller distinguished scrutiny from the "interest balancing" approach it was rejecting, which means that if you respect the opinion's usage, you cannot conclude that it was also rejecting scrutiny.

http://www.swissarmylibrarian.net/wp-content/uploads/2011/08/Ouroboros.png

RipVanWinkle
09-13-2013, 8:24 AM
The law is serving the exact purpose it was always intended to serve, preserving the government and the status quo.

Aren't some laws designed to have the opposite intention? 1st & 2nd Amendments? Bill of Rights?

Mitch
09-13-2013, 8:37 AM
Aren't some laws designed to have the opposite intention? 1st & 2nd Amendments? Bill of Rights?

The Bill of Rights places (theoretical) limits on the activities of government, but Tincon's characterization of the purpose of law is essentially correct.

The first purpose of government is to adjudicate disputes among society's members. Law is the framework in which this essential service is performed.

curtisfong
09-13-2013, 8:44 AM
I'm sorry, but I come from a scientific background and these arguments using incurably vague terms ("reasonableness", for christ's sake!!) and persistent, obstinate avoidance of quantification in factual statements just drive me nuts. Of course they never end; when vagueness rules equivocation dominates and nothing ever gets settled.

Exactly. Which is why it is infuriating that the only "reasonableness" test as applied by scrutiny (as argued by chainsaw) seems to be whether or not the legislature finds a law that they themselves passed reasonable.

Again, if true, of what use is scrutiny as applied by Incorporation?

Tincon
09-13-2013, 9:26 AM
Aren't some laws designed to have the opposite intention? 1st & 2nd Amendments? Bill of Rights?

"Some laws" aren't The Law (the system). The Constitution itself was a huge power grab designed to serve the status quo (but of course The Law predates that document by millennia). Principled people who understood the system (anti-federalists) worked to get the Bill of Rights inserted to preserve our rights. Nothing has changed between then and now. The Law is designed to serve the "inner party", but in order for it to be (and appear to be) legitimate, it must allow for some pushback from within the system. That's how we got the Bill of Rights, and that is how we will keep it.

curtisfong
09-13-2013, 9:43 AM
That's how we got the Bill of Rights, and that is how we will keep it.

Given what FGG and chainsaw have been saying about the utter impotence and lack of utility of scrutiny, I do not think we will keep it. In fact, it has been eroding away for decades now.

Tincon
09-13-2013, 9:54 AM
Given what FGG and chainsaw have been saying about the utter impotence and lack of utility of scrutiny, I do not think we will keep it. In fact, it has been eroding away for decades now.

There is a right, and wrong, way to go about trying to use the system to preserve these rights. FGG and chainsaw, while better informed than the CGF board, have not indicated they want anything other than the elimination of the right. It's no surprise people like that exist, and it's no surprise that they want to convince you to give up. That's not new either (read the Federalist Papers).

Where they and I agree is that CGF is doing things in a way that has no chance of success. Where we disagree is that there is no chance of success. But that part, academic discussions aside, does not matter. We keep fighting, no matter what. If the system stops being legitimate, and refuses to recognize our rights, then it's time to replace it. But we are not even close to that point yet, and actually, in most of the country, we are winning. We are winning at SCOTUS. There is no reason to think we will not eventually win here.

curtisfong
09-13-2013, 10:18 AM
It's no surprise people like that exist, and it's no surprise that they want to convince you to give up. That's not new either (read the Federalist Papers).


What is astounding to me is that if what you say is true, FGG and chainsaw despise all of the Bill of Rights equally, and think that legislatures should be free to ignore them at will.

And if they cannot admit that, I don't care how smart they are. They deserve my unreserved antipathy, not to mention my distrust.

We keep fighting, no matter what.

I am committed to this as well. I, like you, have hope that SCOTUS will eventually get it right and force the lower courts in line, over the objections of FGG and chainsaw.

FABIO GETS GOOSED!!!
09-13-2013, 10:59 AM
Where we disagree is that there is no chance of success.

Huh?

Given what FGG and chainsaw have been saying about the utter impotence and lack of utility of scrutiny, I do not think we will keep it.

Where can I find what I have been saying about that? Thanks. lol.

http://www.swissarmylibrarian.net/wp-content/uploads/2011/08/Ouroboros.png

??? lol.

kcbrown
09-13-2013, 11:43 AM
No need to lecture me on logic, I understand perfectly well how the outcomes of these cases will affect the real world. If there is problem here, it is a general lack understanding about how the real world, and the law, effect the outcome of these cases. The legal process is part of reality, it's time to accept that.


I do not deny that the legal process is part of reality. That is obvious, as law is what is used to control and subdue the population.



The courts generally rule according to the law, not "as they please", nor according to logic.
Yes, generally. But this is where you and I disagree: the 2nd Amendment arena is an exception to this. And one need only examine Woollard, Kachalsky, and a plethora of other rulings that limit Heller to its facts to see that this is so.

The reason the 2nd Amendment arena is an exception is that it involves a highly polarizing topic, one that is far more polarizing than the question of minority rights back during the civil rights movement, and it takes an exceptional person to ignore his own opinions on the matter and rule based strictly on what is before him. Exceptional people are rare by definition.



Until you understand the difference, you will remain ignorant of the legal process. If you have it in your head that at one point this government, or any other government in history, recognized "unlimited rights", and using solely logic ensured every citizen received them; then you are delusional.
Oh, believe me, I am not under that delusion. But I am not speaking of rights as unlimited, either. They are limited and always have been. What I'm speaking of in this context, though, is not that rights are limited, but how they are limited.

This goes back to the purpose of rights: a shield from interference with the actions being taken under them. The original limits on rights were defined by where rights intersected and by the scope of the rights. "Government interest" didn't really enter into the picture except indirectly, through the protection of rights. Which is to say, in the hierarchy of things, rights came first, and were limited only by each other and by their inherent scope. Of course, that didn't last very long...

Scrutiny is an invention of the court, and a recent one at that. It codifies the very thing that is the antithesis of rights and makes it the equal of them: government interest in general. This was a major blow, for government interest is that of control and limitation, the antithesis of liberty. Scrutiny elevates it to the same level as rights. I cannot overstate how bad that is for rights. Whereas before, a law which infringed upon a right would, if the court were honest, be struck for having infringed upon it, now, thanks to scrutiny, infringement itself is tolerated. This is a direct consequence of the placement of "government interest" at the same level in the hierarchy as rights themselves, an effect that scrutiny codifies into the very fabric of the law that is used to evaluate rights.

A right which is conditioned upon whether or not the government has sufficient "interest" in its nullification is a privilege.



The law is serving the exact purpose it was always intended to serve, preserving the government and the status quo. Welcome to the "real world". That does not mean I have accepted defeat. It means I'm willing to intelligently work within the system to preserve my (our) rights.
Are you really? I hope so.

But I have my doubts. The reason I have my doubts is that I can no longer know what exactly you mean when you say rights. Are you talking about the original conception of rights, or of the watered-down substitute that we now find ourselves with? I'm inclined to think the latter because you refer to preserving them, not restoring them.



Someday the day will come when that isn't possible anymore. Maybe in 10 years, maybe in 500. But for now, all the options are still on the table.

Finally, for the legal option to be effective, it needs to be managed by people who understand it. So we are back to the point of this thread.On that I fully agree. My despair comes not from the fact that you are learning how to do that, but rather that you appear to be plunging headlong into the abyss that our country has fallen into, by way of adopting the terminology and methods that have gotten us there and making them your own.

kcbrown
09-13-2013, 11:51 AM
"Some laws" aren't The Law (the system). The Constitution itself was a huge power grab designed to serve the status quo (but of course The Law predates that document by millennia). Principled people who understood the system (anti-federalists) worked to get the Bill of Rights inserted to preserve our rights. Nothing has changed between then and now. The Law is designed to serve the "inner party", but in order for it to be (and appear to be) legitimate, it must allow for some pushback from within the system. That's how we got the Bill of Rights, and that is how we will keep it.

We got the Bill of Rights because the anti-Federalists had sufficient backing to block ratification of the Constitution without it.

Those who fight for liberty today haven't nearly that kind of power.

kcbrown
09-13-2013, 11:55 AM
The Bill of Rights places (theoretical) limits on the activities of government, but Tincon's characterization of the purpose of law is essentially correct.

The first purpose of government is to adjudicate disputes among society's members. Law is the framework in which this essential service is performed.

While law may at one time have been that, it has become far more than that, and far more burdensome along the way. It has now become a noose around our collective necks. It no longer merely provides a framework for resolution of disputes, it serves as a mechanism of control.

And Tincon is right: it always has. That's because the Federalists won, and they fought the Revolution not because they wanted liberty for the country, but because they wanted power for themselves.

RipVanWinkle
09-13-2013, 2:31 PM
"Some laws" aren't The Law (the system). The Constitution itself was a huge power grab designed to serve the status quo (but of course The Law predates that document by millennia). Principled people who understood the system (anti-federalists) worked to get the Bill of Rights inserted to preserve our rights. Nothing has changed between then and now. The Law is designed to serve the "inner party", but in order for it to be (and appear to be) legitimate, it must allow for some pushback from within the system. That's how we got the Bill of Rights, and that is how we will keep it.

My questions were a feeble attempt to recast the discussion into an engineering framework. Let The Law (the system) refer to the collection of all the laws. As you say, these are designed to serve the interests of the "inner party", elected representatives, bureaucrats and appointees, judges, government employees, police, military, intelligence agencies etc., not an exhaustive list, but you get the idea. These people control the laws.

The laws are adjustable in the sense that they can be modified, added, deleted (hardly ever, but never mind) to vary the functioning of the system in order to tweak the "output" of the country to align with the goals of the "inner party". This is a gross oversimplification of a dynamic system with a huge number of interacting elements, but bear with me. What we have at this point is an open loop system. The laws can be be adjusted to produce any value in the dynamic range of the "output".

A system of this description is unstable depending on the "gain" introduced by the individual laws in summation. Some laws have large effects on the overall "gain" of the system; many, perhaps most, have little or no effect. In order to stabilize the system, a subset of laws, found in the Constitution and its amendments, has been introduced to form a negative feedback loop, ensuring that the overall output of the system stays within non-destructive limits. The laws in this feedback loop can themselves be modified, but the process is difficult and not frequently done.

Control over the Constitutional laws is vested in the U.S. Supreme Court, a collection of political appointees (and therefore also members of the "inner party") nominated by one portion of the "inner party" and requiring confirmation by a third portion. The control is exercised by the Supreme Court deciding whether any law is sufficiently in conflict with the Constitution that it must be overturned, or is not in conflict and will be upheld. Things are more nuanced than this, but the overall effect is an unusual weak negative feedback loop with a kind of threshold or non-linearity embedded.

The 2nd Amendment functions as a kind of "fail-safe", controlling law in the feedback loop because presently it confers the right of individuals to arm themselves for self defense, and, arguably, defense against extra-constitutional oppression by the "inner party". Currently many local jurisdictions have passed laws that appear to ignore or minimize that right, even while claiming to honor it. Some of the instigators of this strategy are on record as favoring complete severance of the 2nd Amendment from the feedback loop. I personally think that additional weakening of the negative feedback will only result in greater instability in the system, although I can't begin to quantify the magnitude of that effect with any certainty. Those who want to go open loop seem grossly overconfident that that would have beneficial effects.

This thread is about one case among many dealing with these issues, and specifically about legal strategies. My experience of the legal system in action is confined to jury duty, giving testimony, and watching trials on TV. My overall impression has been that judges are often impatient, not inclined to deal with complicated arguments, and as prejudiced as most people. Given their case loads maybe that's to be expected. Going to trial is always going to be a crap shoot, but repeatedly getting dismissed before trial can't be good.

I was looking at the briefs in the Woollard cert. petition and the lower courts paying lip service to Heller & McDonald and then giving the narrowest conceivable interpretation is a repeated complaint of the appellants even when the cases do get to trial. Discouraging

Apocalypsenerd
09-13-2013, 8:06 PM
There is a right, and wrong, way to go about trying to use the system to preserve these rights. FGG and chainsaw, while better informed than the CGF board, have not indicated they want anything other than the elimination of the right.

I don't know about Chainsaw, but FGG has pretty clearly asked some questions of the pro-2A side, that when answered correctly, would seem to improve the pro-2A legal game. It's an application of the dialectic method.

I could be wrong, maybe he's here to spread misinformation, but parsing his questions seems to yield good predictions as to what a particular legal procedure will result in.

If my assumptions about his background are even close, it's the most ethical way he can assist.

RipVanWinkle
09-14-2013, 2:55 AM
I don't know about Chainsaw, but FGG has pretty clearly asked some questions of the pro-2A side, that when answered correctly, would seem to improve the pro-2A legal game. It's an application of the dialectic method.

I could be wrong, maybe he's here to spread misinformation, but parsing his questions seems to yield good predictions as to what a particular legal procedure will result in.

If my assumptions about his background are even close, it's the most ethical way he can assist.

That's my impression as well. He engages in a loose Socratic dialog and sticks to the point. I used to have an athletic coach who used that technique a long time ago, kind of painful when your sore spots got poked but pretty effective overall.

I'm also not the least bit concerned about his enigmatic online persona. I don't sense any hostility to the 2A in general and speculation about details of his background seem pointless. He's "Fabio Gets Goosed", what you see is what you get. Besides, he's entertaining.:D

Disclaimer: I do not endorse anything he says.

curtisfong
09-14-2013, 9:04 AM
Yes and no. He has yet to provide any constructive advice; even the most iconoclastic Socratic dialog has an aim - to advise a proper course, not just explain why every other course will fail, and say I told you so, again and again.

That is trivial to do for somebody who is never willing to be wrong - it is easy to predict failure and point it out. It is much harder to predict success.

That kind of person never points out a weaknesses in the opposition that should be exploited. Instead, all that kind of person does is illustrate how every single current attack or strategy will fail - an easy way to never have to admit being wrong.

Finally, when subjected to Socratic dialog himself, he disappears, refuses to respond, and when asked why, claims it is out of boredom.

That kind of person only ends up discouraging ALL action; and the conclusion drawn from such a dialog is often that inaction is the best course. That conclusion may have been drawn incorrectly through ignorance or laziness, but proper Socratic dialog should not lead to that conclusion. Ever. It should motivate and illuminate, not tear down and discourage.

Peter.Steele
09-14-2013, 9:22 AM
That is trivial to do for somebody who is never willing to be wrong - it is easy to predict failure and point it out. It is much harder to predict success.

That kind of person never points out a weaknesses in the opposition that should be exploited. Instead, all that kind of person does is illustrate how every single current attack or strategy will fail - an easy way to never have to admit being wrong.




So, what I'm getting from this is that (a) Fabio has been dead on the money just about every time he's made a prediction, and (b) you hate it when he's right?

Insanity is frequently defined as doing the same thing the same way over and over again and expecting a different result each time. You keep dismissing him as a jerk and a troll, and he keeps being right, but each time you expect the result to work out differently. I'd be willing to bet you a bottle of your favorite that if you (inclusive, not just specifically you alone Curtis) quit dismissing him, and started playing nice and listening to his input, then you might start seeing some differences in the way he responds to you as well. And who knows, maybe you'd start seeing some different outcomes in your work, too?

As it is, dude might as well change his name to Cassandra, for all the (useful) attention you pay to him, even while you say that he "never ha[s] to admit being wrong." Because, y'know, he isn't.

curtisfong
09-14-2013, 9:31 AM
You keep dismissing him as a jerk and a troll, and he keeps being right, but each time you expect the result to work out differently.

Nope. I expect the results of his efforts to always be the same. To discourage others, and to incentivize inaction


As it is, dude might as well change his name to Cassandra, for all the (useful) attention you pay to him, even while you say that he "never ha[s] to admit being wrong."

That's precisely what makes a Cassandra a Cassandra. Predicting failure is trivial, especially when it comes to the topic at hand, which is winning in a courtroom that despises the 2A. If all a Cassandra does is predict failure, and never provides real insight, and whoever she is advising (her goal, ostensibly being success on their part) fails again, and again, and again, then is the Cassandra insane?

Maestro Pistolero
09-14-2013, 9:40 AM
suscribing.

Remember to mis-spell that again when you search for it.

Peter.Steele
09-14-2013, 9:55 AM
Nope. I expect the results of his efforts to always be the same. To discourage others, and to incentivize inaction


Got any specifics on why you believe that his intent is to discourage and "incentivize inaction?" What "incentives" is he offering?







That's precisely what makes a Cassandra a Cassandra. Predicting failure is trivial, especially when it comes to the topic at hand, which is winning in a courtroom that despises the 2A. If all a Cassandra does is predict failure, and never provides real insight, and whoever she is advising (her goal, ostensibly being success on their part) fails again, and again, and again, then is the Cassandra insane?



See, you're still missing the point. What makes a Cassandra a Cassandra is making predictions which are both consistently ignored and proven to be correct. What would bump Fabio to the level of insanity is if he was actually expecting you (again, a collective "you") to pay attention to what he says. For your view to make sense, then two conditions would have to change. First, you'd have to be actually taking his advice and incorporating what he says into your strategy and planning. Second, he'd have to be wrong, and therefore responsible for your failure. Neither of these is true. Cassandra - and Fabio - are both routinely discounted as trolls, and are both pretty accurate with their predictions. If he repeatedly predicts the failure of your attempt to pull a nail with the flat side of the hammer, and you repeatedly ignore him and keep trying to do it that way anyway, who's responsible for your failure?

He provides plenty of real insight. It's not like he's just stepping up and saying "no, that's wrong, you'll fail" and leaving it at that. When he tears apart a case or a legal strategy, he ALWAYS provides specific reasons, citations, etc., to back up everything he says.

Fabio is perfectly willing to have good, serious, rational discourse with people. The key is, you have to be polite about it. You have to approach him with a good attitude. Be intelligent. Think for yourself, don't just parrot someone else's positions. I've had several VERY useful discussions with the guy and we worked out between us a couple of ideas that could potentially improve our situation vis-a-vis 2A rights here in California. (And no, I haven't kept them to myself - I've passed them on to "the right people.")

Send him a PM. Drop the attitude and try to get to know the guy a little. He's not the douchebag troll that you think he is.



(ETA: Yes, I know he has been asked by CGF to help with some things in the past, and told them to piss up a rope. I haven't seen the communications, but ... I'm guessing that there may perhaps have been some frustrations on both sides that led to that response.)

curtisfong
09-14-2013, 9:27 PM
Re: cassandra (very OT, so i'll gloss over it to save people the pain of watching us argue semantics over it):

You seem to be entirely skipping the negative connotation of "Cassandra" to make a point. That's ok. I get it, and I'll take your word for it, namely:

He's not the douchebag troll that you think he is.

I'm sure he isn't in person. But hey, this is the Intarwebs; for some personality types, it is almost inevitable to be perceived a certain way. I am willing to accept your assurance that he's a good guy in real life, and I will try to always keep it in mind.

FGG: for what it is worth, I apologize if I have misjudged you.

RipVanWinkle
09-15-2013, 9:05 AM
Re: cassandra (very OT, so i'll gloss over it to save people the pain of watching us argue semantics over it):

You seem to be entirely skipping the negative connotation of "Cassandra" to make a point. That's ok. I get it, and I'll take your word for it, namely:



I'm sure he isn't in person. But hey, this is the Intarwebs; for some personality types, it is almost inevitable to be perceived a certain way. I am willing to accept your assurance that he's a good guy in real life, and I will try to always keep it in mind.

FGG: for what it is worth, I apologize if I have misjudged you.

With the advent of digitally assisted communication this is real life!:)

I don't know if this is good advice or not, but with respect to FGG (or anyone else) here's how I would proceed. FGG is obviously a professional with a lot of legal expertise. He has no knowledge in advance of what cases CGF will initiate. Like the rest of us, he responds when someone posts about the initiation or progress of a case, so it's pointless to accuse him of failing to provide guidance in advance.

Sometimes he sounds oracular, but he usually gives clues or links to other material that can reinforce the point(s) he's making. He can't take the time to spoon feed us details of well trodden legal ground in baby talk.

For example, he was disputing kcbrown about the meaning of a passage from the Heller case. I mentioned the fact that he hadn't directly addressed kcbrown's point (he referred to it as "drivel"). He responded to my remark with this:

Boredom avoidance. Once it was conceded that one usage was being substituted for another, that confirmed my initial observation. As a side note, there is academic disagreement whether scrutiny is a balancing test even under a "plain meaning" usage. Whatever the end result of that debate, Heller distinguished scrutiny from the "interest balancing" approach it was rejecting, which means that if you respect the opinion's usage, you cannot conclude that it was also rejecting scrutiny.

O.K., I googled "scrutiny is a balancing test" and got "About 7,920,000 results". Hmmm.... O.K., I clicked on the first result, which turned out to be a law review article by Professor Volokh of UCLA from 1997:

http://www2.law.ucla.edu/volokh/scrutiny.htm

From a quick scan of the article I realized that I was about to descend into another thicket of legal ambiguity, so I decided (as a joke) to reward FGG with a taste of his own medicine in my own oracular style. The snake eating its own tail is, among other things, a symbol of philosophical and theological debates that produce volumes but never get resolved. I guess if you have to explain a joke it's not funny anymore, or maybe it wasn't funny in the first place.

In spite of my misgivings, the Volokh article linked above is very readable compared to some other examples; probably a good starting point, and I continue to study it and others. Probably/maybe this will never become a relevant issue in Teixera if it proceeds, but in the higher courts its bound to be an issue in some 2A case.

curtisfong
09-15-2013, 9:34 AM
http://www2.law.ucla.edu/volokh/scrutiny.htm


Wow. Fantastic. Thanks.

The snake eating its own tail is, among other things, a symbol of philosophical and theological debates that produce volumes but never get resolved. I guess if you have to explain a joke it's not funny anymore, or maybe it wasn't funny in the first place.

FWIW, I got it. FGG seems allergic to OT conversations (let alone "big picture" meta concepts), so it doesn't surprise me that he didn't spend much effort in comprehending what you were saying.


In spite of my misgivings, the Volokh article linked above is very readable compared to some other examples; probably a good starting point, and I continue to study it and others. Probably/maybe this will never become a relevant issue in Teixera if it proceeds, but in the higher courts its bound to be an issue in some 2A case.

I think the legal thicket that is "scrutiny" is an issue in ALL cases. And, like kcbrown, I think its ambiguity allows SCOTUS (and other courts) to come to whatever conclusions they wish to by cherry picking whatever precedent is convenient. If the Volokh article proves anything, it is that "scrutiny" can be as toothless or as merciless as any judge wants it to be, at whim. Certainly, this idea is not unique in law (and some would say it was a feature), but in the context of the Bill of Rights, it is profoundly corrosive.

This is why I despair, and feel the Bill of Rights is ultimately doomed. Incorporation ultimately means nothing. It annoys me that people like chainsaw seem to think this a good thing, and that FGG refuses to discuss the bigger picture, outside of legal minutia.

Classic "what is" vs "what should be" problem. Most lawyers only have time to worry about "is", not "should", and generally don't give a rats *** if there *is* a problem with the system. They're too busy trying to find ways to exploit it, not fix it. After all, they aren't paid to do the latter.

ojisan
09-15-2013, 11:38 AM
Rip: I also got the snake-eats-tail joke and LOL'd.
Then I LOL'd again when FGG didn't get it.
Those within the system can't understand the view from outside the system....they can't see the forest because of all the trees in the way.

Curtis: you hit the nail on the head with this:
Classic "what is" vs "what should be" problem. Most lawyers only have time to worry about "is", not "should", and generally don't give a rats *** if there *is* a problem with the system. They're too busy trying to find ways to exploit it, not fix it. After all, they aren't paid to do the latter.

The system only works due to the consent of the governed.
The lawyers and judges need to realize that by creating such a system, it is their responsibility to make sure the system works fairly and is not perceived as biased or oppressive by the governed.
Much is at risk, anarchy is not a good solution.

kcbrown
09-15-2013, 12:10 PM
Rip: I also got the snake-eats-tail joke and LOL'd.
Then I LOL'd again when FGG didn't get it.
Those within the system can't understand the view from outside the system....they can't see the forest because of all the trees in the way.

Curtis: you hit the nail on the head with this:
Classic "what is" vs "what should be" problem. Most lawyers only have time to worry about "is", not "should", and generally don't give a rats *** if there *is* a problem with the system. They're too busy trying to find ways to exploit it, not fix it. After all, they aren't paid to do the latter.

The system only works due to the consent of the governed.
The lawyers and judges need to realize that by creating such a system, it is their responsibility to make sure the system works fairly and is not perceived as biased or oppressive by the governed.
Much is at risk, anarchy is not a good solution.

It has gotten much worse than that.

Tincon's response highlights the problem. Legal "reasoning" (a term that, again, I loathe to use in this context because doing so is Doublespeak -- the very term means the use of logic -- but I do not know of another term that would apply) is not logic. It is something else.

But logic is the expression of and derivative of the cause and effect nature of the real world, made abstract and accessible. That legal "reasoning" is something else means that there is a disconnect between the legal world and reality that is baked into the fabric of the legal world. The end result is that legal conclusions can be and at least sometimes are valid per legal "reasoning" and nonsensical -- in other words, illogical -- per real-world reasoning all at the same time.

This state of affairs is not healthy, for legal conclusions are applied directly back to the real world. They are, after all, decisions about how people should be operating within the real world, not the legal world. To demand that decisions about the real world that are derived through illogic be applied to the real world, something which the system insists must happen (and which forces to happen at gunpoint) is to insist on a bad outcome indeed.

No, that is not healthy at all. It is madness. For in the end, the real world will always prevail no matter how much legal "reasoning" might insist otherwise.


As for "scrutiny", I have already shown why it is fundamentally incompatible with the purposes for which this country was claimed to be founded upon: because it elevates the bane of rights -- government interest -- to the level of equality with rights, when the very purpose of the concept of rights, and the very reason the Bill of Rights exists, is to elevate protection of that which is within the scope of those rights above government intrusion upon it except when one right collides with another, in which case the entire reason for government intrusion is to fairly determine which right should prevail.

RipVanWinkle
09-15-2013, 12:16 PM
FWIW, I got it. FGG seems allergic to OT conversations (let alone "big picture" meta concepts), so it doesn't surprise me that he didn't spend much effort in comprehending what you were saying.

Oh, he got it; he responded"lol". I just included the snake as part of the narrative and realized I was supplying a superfluous punch line; didn't mean to imply that anyone did or didn't get it. But it is OT.

curtisfong
09-15-2013, 1:31 PM
Tincon's response highlights the problem. Legal "reasoning" (a term that, again, I loathe to use in this context because doing so is Doublespeak -- the very term means the use of logic -- but I do not know of another term that would apply) is not logic. It is something else.

Exactly. So not only is the language of law only cosmetically identical to English (but has an entirely different meaning), the logic of law is only cosmetically identical to actual logic (but has entirely different mechanics). No wonder lawyers spend so much time dismissing grammar analysis from actual linguists, and rejecting logical analysis from actual logicians. They really do operate in an entirely different universe from reality.

Which, as kcbrown points out, wouldn't be so terrible if the results of their "work" didn't do so much damage to the real world.

kcbrown
09-15-2013, 2:24 PM
Exactly. So not only is the language of law only cosmetically identical to English (but has an entirely different meaning), the logic of law is only cosmetically identical to actual logic (but has entirely different mechanics). No wonder lawyers spend so much time dismissing grammar analysis from actual linguists, and rejecting logical analysis from actual logicians. They really do operate in an entirely different universe from reality.

Which, as kcbrown points out, wouldn't be so terrible if the results of their "work" didn't do so much damage to the real world.

This discussion (and, especially, the involvement of Tincon and, secondarily, FGG) has proven incredibly illuminating.

Why? Because it has given us a lens through which we can properly examine the proclamations of those who are entrenched in the legal world.

Allow me to give you an example. Someone from that legal world says "you have the right to keep and bear arms". Prior to the use of that lens, one would take that statement at face value and, based on what the term "right" means in the real world, conclude that one could safely perform those actions that fall within the scope of the right, knowing that while doing so, he would be safe from government interference. And one would quickly find the government interfering in precisely the way he expected it not to.

But with the use of that lens, one would take that statement and run it through the "legal world to real world translation matrix" and come up with the statement "you have the privilege to keep and bear arms that you can exercise in whatever ways the government as a whole agrees with".


The latter is a very different statement, with far different, and much more ominous, implications. For in the former, the rights of the citizenry dominate the equation and the government plays a subservient role to them, whilst in the latter, the government is the master in all respects. In the former, the set of actions one could safely take is fixed. In the latter, it is variable, for what the government agrees with is a moving target.


This is why I am now highly skeptical of Tincon when he proclaims that he wishes to work towards the "preservation of our rights". Since he is currently on the fence between the real world and the legal world, and is moving towards the legal world (and, hence, away from the real world), I can no longer be sure what he actually means when he says "rights", for the meaning of that term is very different between the two worlds. And as long as I lack confirmation from him one way or the other, I will remain skeptical in that regard. But I do think his heart's in the right place, because at least he was willing to be honest about the world he is moving towards. So I hold out hope for him.


The term "interest balancing" is also one that differs between the real world and the legal world. In the real world, it means what it says: two different interests are balanced against each other, something that is true irrespective of the chosen mechanism (as long as the mechanism itself actually chooses one or the other on the basis of, at a minimum, one or more characteristics of each). In the legal world, that meaning has carved out exceptions, namely that, now that the Supreme Court has decried "interest balancing" tests, whenever the Supreme Court performs a test (or has ever performed one, or upheld the performance of one on the part of a lower court), it must ipso facto not be an "interest balancing" test since, if it were, the Supreme Court would be contradicting itself. And the Supreme Court never does that, even when it reverses its own decisions, because one of the legal tenets from which those in the legal world proceed is, apparently, that the Supreme Court is never incorrect (probably because that is the meaning that those within the legal system assign to it due to it being the "final authority" on these matters).


This whole situation would present all manner of opportunities to poke fun were it not for the sobering fact that the output of the legal system is applied to those of us who live in the real world through the barrel of a gun.

But sobering as that fact is, the plain fact of the matter is that the legal system is a farce, a caricature of the real world that has been manipulated to achieve the ends that those who wield power (which includes, in very large part, judges who rule upon the law) wish to achieve. And this system sits squarely in the middle of our system of government.


Like I said, this discussion has proved most illuminating. Whereas before, I had a certain unease about the legal system that I wasn't really able to put into words, I now have solid, articulable, and demonstrable reason for it. Which is to say, what we have on our hands here is a system that formalizes illogic and encodes Doublespeak, and insists at gunpoint that its illogical results be applied to the real world. As such, things are even worse than I thought.

Imagine my surprise.

As a result, that bit of text of mine that Tincon currently has in his signature is most apt here. If we achieve anything close to a reasonable (as measured in the real world, not the farcical legal one) outcome through such a farcical system, it will be a freaking miracle.

Tincon
09-15-2013, 3:05 PM
Since he is currently on the fence between the real world and the legal world, and is moving towards the legal world (and, hence, away from the real world), I can no longer be sure what he actually means when he says "rights", for the meaning of that term is very different between the two worlds.

It's a pretty classic problem. You need someone to fight battles for you in the "legal world" because the legal world has an enormous amount of power over the real one, and we have significant enemies there. A person fighting in the legal world must be immersed in it and understand it in order to be successful. And yet, if he becomes to immersed, you worry he will forget what he is fighting for. A legitimate concern.

Battle not with monsters, lest ye become a monster, and if you gaze into the abyss, the abyss gazes also into you.