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View Full Version : Semi-auto Ak47 same as machine-gun says CA 4th Appellate [Zondorak, 2013]


ToldYouSo
10-21-2013, 3:41 PM
Published today, October 21, 2013

People v. William Martin Zondorak, Jr
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
D062900
(Super. Ct. No. SCD225392)

The decision in a nutshell:

1. Criminal conviction for in home possession of an AK series semi-automatic "assault rifle" affirmed facially and as-applied under 2nd and 14th Amendments.
2. Semi-automatic AK-47 same as machine-gun.
3. Semi-automatic AK-47 rifle is a "dangerous and unusual weapon."
4. Possession falls outside the scope of the Second Amendment.
5. Rational basis applies.

Decision attached.

ThePatriot
10-21-2013, 4:14 PM
Please correct me if I am wrong, but it sounds like this ruling just outlawed ALL semi-auto AK and AR rifles in CA. I do not know how else to read it. It says that any rifle which is merely a slight step removed from an AR or AK machine gun is outlawed. Did they just pass the assault weapons ban by judicial fiat?

newglockster
10-21-2013, 4:16 PM
In on this!

strlen
10-21-2013, 4:17 PM
Please correct me if I am wrong, but it sounds like this ruling just outlawed ALL semi-auto AK and AR rifles in CA. I do not know how else to read it. It says that any rifle which is merely a slight step removed from an AR or AK machine gun is outlawed. Did they just pass the assault weapons ban by judicial fiat?

It did not: it merely said that the current assault weapon ban in California stands. Spoons are also not protected by the second amendment, but that doesn't mean they're banned. More to the point, machine guns are not protected by the second amendment, but may still be legally acquired in other states if manufactured before 1986 after jumping through insane number of hoops...

This is still an idiotic ruling, but nothing unexpected and status quo remains. Changing constitutional law through criminal cases is difficul: there are other cases in the works that challenge the AW ban and that have higher chance of being taken up by higher courts once a scrutiny standard is set. I do wonder if it's feasible to request depublication, however, until this is cleared up.

AK all day
10-21-2013, 4:18 PM
What???? That's not right.

ToldYouSo
10-21-2013, 4:21 PM
Please correct me if I am wrong, but it sounds like this ruling just outlawed ALL semi-auto AK and AR rifles in CA. I do not know how else to read it. It says that any rifle which is merely a slight step removed from an AR or AK machine gun is outlawed. Did they just pass the assault weapons ban by judicial fiat?

The decision is attached to the initial post. It is self-explanatory.

Gutz
10-21-2013, 4:22 PM
Wait, what? So ar AK-47 type rifles banned or how should I interpret this?

ThePatriot
10-21-2013, 4:25 PM
I read the decision - the logic is clear - if it is substantially similar to an AR/AK then it is one. The nature of the ruling upholds the assault weapons ban but also seems to redefine the underlying standard. I read government regulations for a living and it seems pretty clear. And since this is an appellate ruling it does set a precedent.

ToldYouSo
10-21-2013, 4:38 PM
I read the decision - the logic is clear - if it is substantially similar to an AR/AK then it is one. The nature of the ruling upholds the assault weapons ban but also seems to redefine the underlying standard. I read government regulations for a living and it seems pretty clear. And since this is an appellate ruling it does set a precedent.

However California defines "assault weapon" hasn't changed. For example, Mini-14s did not all of a sudden become an assault rifle but given the logic of this decision the state could add them to the banned list and presto, they would be.

ke6guj
10-21-2013, 4:44 PM
I'm assuming that this was a fully-featured AK and did not have a maglock.




However California defines "assault weapon" hasn't changed. For example, Mini-14s did not all of a sudden become an assault rifle but given the logic of this decision the state could add them to the banned list and presto, they would be.if they wrote a new bill and got the governor to sign it, like they almost did a couple weeks ago.

boanerges
10-21-2013, 4:44 PM
Bad decision.

Bad precedent

What about his AK caused it to fall within the "assault weapon" category?

Tincon
10-21-2013, 4:57 PM
Guy had a listed AK (or maybe it was feature based, but irrelevant because guy does not contest that rife was an AW according to state law). Got busted. Tried to make a 2A defense and, predictably, failed.

Meanwhile, nothing has changed. Keep calm and don't own listed series or feature banned AK/ARs.

strlen
10-21-2013, 5:02 PM
Bad decision.

Bad precedent

What about his AK caused it to fall within the "assault weapon" category?

Presumambly lack of a mag lock anmd presence of features. Remember, this is a criminal case. I don't see how this wasn't entirely predictable. There are many cases like this.

Remember, however, this has no bearing on what constitutes an assault weapon: they did not pass a new law, they merely did not overturn an existing law. There are cases where judiciary has been accused of legislating from the bench, but that's usually happened in regards to voting rights or other 14th amendment anti-discrimination issues.

Another example is that is that pornographic material with no aristic merrit (i.e., not fine art nudes) is not protected by the first amendment but it is still legal in most of United States (but censored in public computers in the state of Utah, for example).

Of course we'd like the court to throw the AWB out, but this isn't going to happen as a result of a criminal case. There are far more worrying precedents in other states (e.g., Heller II -- not done by Gura) that were results of poor challenges to AWBs.

(Anecdotally, I think an AWB could only stand if it was fully of loop holes -- e.g., think 1994 AWB or Robert Roos but without a magazine ban or absurd distinctions, e.g., flash hiders vs. muzzle brakes -- that still allowed you to posses ARs, AKs, FALs, or really anything more common than Heller's revolver).

Wolverine
10-21-2013, 5:17 PM
The bottom line is the legislature can arbitrarily ban any firearm as being "dangerous and unusual" and the court won't intervene.

As we know short barreled shotguns were defined by someone jotting down 18" as if that were some magical number. There is no logic behind it. There is no fundamental principle involved. Just that the legislature said 18" and suddenly a shotgun with a barrel short than 18" becomes "dangerous and unusual".

This court (I can hear them chuckling under their breath) tells us that if the legislature can arbitrarily declare an SBS as dangerous and unusual then the legislature can just as arbitrarily declare this guys AK as dangerous and unusual...thats it...tough luck.

Librarian
10-21-2013, 5:31 PM
Published today, October 21, 2013

People v. William Martin Zondorak, Jr
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
D062900
(Super. Ct. No. SCD225392)

The decision in a nutshell:

1. Criminal conviction for in home possession of an AK series semi-automatic "assault rifle" affirmed facially and as-applied under 2nd and 14th Amendments.
2. Semi-automatic AK-47 same as machine-gun.
3. Semi-automatic AK-47 rifle is a "dangerous and unusual weapon."
4. Possession falls outside the scope of the Second Amendment.
5. Rational basis applies.

Decision attached.

Would you please find the supporting citation for "2. Semi-automatic AK-47 same as machine-gun."?

I see James also cited post-Heller precedent to support its conclusion, noting that U.S. v. Fincher (8th Cir. 2008) 538 F.3d 868 held Fincher's possession of a machine gun was "not protected by the Second Amendment" because "[m]achine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use."(Fincher, at p. 874.) Although James acknowledged the "fully automatic nature of a machine gun renders such a weapon arguably more dangerous and unusual than a semiautomatic assault weapon, that observation does not negate the fact that assault weapons, like machine guns, are not in common use by law-abiding citizens for lawful purposes and likewise fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. . . . In any event, assault weapons . . . are at least as dangerous and unusual as the short-barreled shotgun at issue in [Miller]." (James, at pp. 676-677.)but that does not seem to me to support the 2nd statement.

CSACANNONEER
10-21-2013, 5:39 PM
If a "semi auto AK is the same as a machine gun" then, it can not fit the definition of a CA AW because, it would be "full auto" and not "semi auto".

If AK type weapons are "unusual", that's news to me. They are one of the most "usual" guns to see at every gun show in CA.

ThePatriot
10-21-2013, 5:45 PM
I can get where they would say that a listed AK type of weapon, or an off list sans bullet button was illegal, since that certainly does not meet CA standards. The thing that bothers me about this is that they do not try to make their case from the CA ban at all but seem to use a whole other type of justification. It almost looks as if this ruling was politically motivated to support the type of thing we expect to see in a 2014 ban bill. Saying that a near cousin of a banned gun is illegal too is just tailor made to support a ban on all semi auto modern sporters.

VendetAR
10-21-2013, 5:46 PM
If a "semi auto AK is the same as a machine gun" then, it can not fit the definition of a CA AW because, it would be "full auto" and not "semi auto".

If AK type weapons are "unusual", that's news to me. They are one of the most "usual" guns to see at every gun show in CA.

They are correlating that an ASSAULT WEAPON ie; no mag lock with features is legally the same as a MG.

Since no present SCOTUS ruling has determined that State AWB's are unconstitutional, the judge said that AW's are not in common use (in CA) and as such, the AWB stands and the guy is guilty of possessing an unregistered assault weapon.

Is it wrong? Yes. Is it wrong by the law in place? No.

kcbrown
10-21-2013, 5:54 PM
James also cited post-Heller precedent to support its conclusion, noting that U.S. v. Fincher (8th Cir. 2008) 538 F.3d 868 held Fincher's possession of a machine gun was "not protected by the Second Amendment" because "[m]achine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use."(Fincher, at p. 874.) Although James acknowledged the "fully automatic nature of a machine gun renders such a weapon arguably more dangerous and unusual than a semiautomatic assault weapon, that observation does not negate the fact that assault weapons, like machine guns, are not in common use by law-abiding citizens for lawful purposes and likewise fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. . . . In any event, assault weapons . . . are at least as dangerous and unusual as the short-barreled shotgun at issue in [Miller]." (James, at pp. 676-677.)
Remember how I said that the "not typically possessed" test would be our undoing? This is proof.

Learn well from this, for it is the shape of things to come. The government can and will ban any firearm it pleases, and the very fact that it has done so will make the resulting firearm no longer "typically possessed" by the law-abiding citizenry and will thus bootstrap the ban into "Constitutionality".

Tincon, this case is your proof that your interpretation of the term "typically" was incorrect, unless you disagree with this court (in which case one must ask why your interpretation carries more weight than that of a court).

Tincon
10-21-2013, 5:56 PM
We don't know what evidence they introduced to show that AKs are in "common use", and I doubt they made the typical use argument at all. This is not the kind of case that makes good precedent. That said, there isn't much harm done really, assuming no appeal. Hopefully this can be de-published.

kcbrown
10-21-2013, 6:03 PM
We don't know what evidence they introduced to show that AKs are in common use.

That is irrelevant. You're not reading the quoted bit. It says that assault weapons are not in common use:


assault weapons, like machine guns, are not in common use by law-abiding citizens for lawful purposes and likewise fall within the category of dangerous and unusual weapons that the government can prohibit for individual use

This is precisely the "logic" I warned would be used by the courts as regards the "not typically possessed" test.

Of course "assault weapons" are not in common use by law-abiding citizens: they are banned. This court is using the effect of the law to bootstrap the law into "Constitutionality" via the "not typically possessed" test. It is exactly what I warned about.

strlen
10-21-2013, 6:09 PM
The bottom line is the legislature can arbitrarily ban any firearm as being "dangerous and unusual" and the court won't intervene.

As we know short barreled shotguns were defined by someone jotting down 18" as if that were some magical number. There is no logic behind it. There is no fundamental principle involved. Just that the legislature said 18" and suddenly a shotgun with a barrel short than 18" becomes "dangerous and unusual".

This court (I can hear them chuckling under their breath) tells us that if the legislature can arbitrarily declare an SBS as dangerous and unusual then the legislature can just as arbitrarily declare this guys AK as dangerous and unusual...thats it...tough luck.

California 4th appelate court != rest of this country's courts, however.

Tincon
10-21-2013, 6:19 PM
That is irrelevant. You're not reading the quoted bit. It says that assault weapons are not in common use:

assault weapons, like machine guns, are not in common use by law-abiding citizens for lawful purposes

This is precisely the "logic" I warned would be used by the courts as regards the "not typically possessed" test.


That isn't "logic," it's declaration of an empirical fact, which I know to be untrue.

kcbrown
10-21-2013, 6:24 PM
That isn't "logic," it's declaration of an empirical fact, which I know to be untrue.

Do you now?

Explain, then, how a "law-abiding" citizen can possess a banned weapon for lawful purposes and be a law-abiding citizen.

That is the fatal characteristic of the "not typically possessed" test: it allows the government to bootstrap a ban into Constitutionality through mere enactment of the ban. Once the ban is in place, the "not typically possessed" test is immediately passed by the law in question.

Apocalypsenerd
10-21-2013, 6:47 PM
Appeal coming?

Germz
10-21-2013, 6:53 PM
interpretation aside, what does this mean for us right now. Is it too early to tell? can I get a famous Wolf Blitzer "initial conclusion"?

scootle
10-21-2013, 7:16 PM
Guy had a listed AK (or maybe it was feature based, but irrelevant because guy does not contest that rife was an AW according to state law). Got busted. Tried to make a 2A defense and, predictably, failed.

Meanwhile, nothing has changed. Keep calm and don't own listed series or feature banned AK/ARs.

I think this bears repeating... this was a criminal case it sounds... that context does have some bearing on the details of this ruling.

On p.2 of the document: http://www.calgunsfoundation.org/2013/10/ca-court-appeal-holds-second-amendment-doesnt-protect-semi-autos/
Zondorak was charged by information of possession of an assault weapon inviolation of former Penal Code section 12280, subdivision (b) (section 12280).1The parties stipulated that Zondorak "knowingly possessed an operable semi-automatic CNRomarm AK series rifle" and he waived jury trial. The court found him guilty of thecharged offense and, after his motion to dismiss the information was denied, the courtsentenced Zondorak to two days' incarceration already served.

On appeal, Zondorak does not contest he knowingly possessed an operable semi-automatic AK series rifle, or that the rifle is within the ban of the AWCA. Instead, heasserts the trial court erred when it denied his motion to dismiss...

The guy had possession of a AW (sounds like it's based on features) and was essentially trying to beat the charge by invoking his 2A rights... at this time, I'm not sure I can understand any other outcome to his case than what was handed down?

VendetAR
10-21-2013, 7:17 PM
interpretation aside, what does this mean for us right now. Is it too early to tell? can I get a famous Wolf Blitzer "initial conclusion"?

It doesn't affect you anymore now than it did before. He was in possession of a named lower and was charged for it. Remember, you cant possess a listed lower in CA unless it was registered before 2000. He tried to fight the AWB and lost.

This is no different than being arrested for having a a non-RAW, non-BB AR15 with a pistol grip or any other feature.

Move on, nothing to see here.

Gio
10-21-2013, 7:27 PM
:willy_nilly: that is all :)

UCT
10-21-2013, 7:28 PM
Interesting question presented by the court and posters here. Would like to know what evidence was presented on the issue of "typically possessed by law-abiding citizens." Prior to the ban, were they "typically possessed" and only became atypical after the ban? Are they typically possessed in some, most, all other states and isn't that the relevant inquiry?

curtisfong
10-21-2013, 7:34 PM
Do you now?

Explain, then, how a "law-abiding" citizen can possess a banned weapon for lawful purposes and be a law-abiding citizen.

That is the fatal characteristic of the "not typically possessed" test: it allows the government to bootstrap a ban into Constitutionality through mere enactment of the ban. Once the ban is in place, the "not typically possessed" test is immediately passed by the law in question.

It baffles me that this still isn't obvious to everybody here.

Michael Ehline
10-21-2013, 7:34 PM
Guy had a listed AK (or maybe it was feature based, but irrelevant because guy does not contest that rife was an AW according to state law). Got busted. Tried to make a 2A defense and, predictably, failed.

Meanwhile, nothing has changed. Keep calm and don't own listed series or feature banned AK/ARs.

^^^^ That. Anyways, just go featureless and in the meantime, IMPEACH Leland Yee. Anti American Communist!

VendetAR
10-21-2013, 7:36 PM
Interesting question presented by the court and posters here. Would like to know what evidence was presented on the issue of "typically possessed by law-abiding citizens." Prior to the ban, were they "typically possessed" and only became atypical after the ban? Are they typically possessed in some, most, all other states and isn't that the relevant inquiry?

Was cocaine infused Coca Cola or Laudanum common in peoples homes before Drug Prohibition? Doesn't matter if it was common before, it matters if the ban is constitutional after.

As of now, Heller doesn't say in precise terms if a semi auto rifle is in common use and as such, the AWB stands. I'll argue that AWB's should be targeted before right to carry now that is handled in all 50 states (even of county law makes it impossible), but INAL and will differ to those that think its better to have CCW than to be able to own certain common firearms.

jrr
10-21-2013, 8:10 PM
My take away is that the court simply lifted the legislative analysis from James to get to their conclusion that "assault weapons" are more dangerous than other weapons without any actual evidence presented on the issue. They then mis-construed (deliberately?) the argument that the AK in question was no more or less dangerous than other semi-auto non AW to mean that the law simply failed to include those weapons by mistake, not because there was an arbitrary distinction made.

As far as the typical or common use argument, I think KC makes a valid point. However, I'd point to Heller and McDonald as holding that something that is banned in one jurisdiction can still be in common use and protected if it is commonly used in other US jurisdictions. After all, handguns were banned in DC yet Heller still found that they were due protection based on nationwide common use for defense.

This might be one issue that makes a CA criminal case a very poor way to present this, as it relies on state courts that won't necessarily look to other jurisdictions in determining common use. For example, it would be extremely disingenuous for the 9th circuit, which includes Nevada and Arizona, Colorado, Washington, etc.. , to argue that because they are banned in CA an AR or AK type rifle isn't in common use. CA is clearly the outlier here.

As for the issue of a nationwide ban... I'd agree. That's why if such a thing were to come to pass rapid legal action would be needed to show that prior to the ban the items in question were in common use for lawful purposes.

Michael Ehline
10-21-2013, 8:18 PM
hey jrr. Ever heard of a non commie, non statist CA judge? Let us know.

UCT
10-21-2013, 8:33 PM
Was cocaine infused Coca Cola or Laudanum common in peoples homes before Drug Prohibition? Doesn't matter if it was common before, it matters if the ban is constitutional after.

As of now, Heller doesn't say in precise terms if a semi auto rifle is in common use and as such, the AWB stands. I'll argue that AWB's should be targeted before right to carry now that is handled in all 50 states (even of county law makes it impossible), but INAL and will differ to those that think its better to have CCW than to be able to own certain common firearms.

Sorry, I guess I missed the lecture in Con Law where they said there was a constitutional right to take drugs. Can you cite the language for me?

VendetAR
10-21-2013, 8:57 PM
Sorry, I guess I missed the lecture in Con Law where they said there was a constitutional right to take drugs. Can you cite the language for me?

At this point in time, there is no constitutional protection to keep and bear semi auto rifles. Just because something was legal before a law was passed doesn't continue to make it legal after.

You tell me where it was said that possessing an illegally configured rifle by state law is unconstitutional and I will concede. I used the drug comparison because they are more or less treated the same. Certain drugs were legal and then that changed. Same goes for the NFA and GCA and just the same, certain prohibited drugs are available for use with certain prescriptions, there are certain weapons available with certain permits.

There is no way around it until the SCOTUS says its okay and I doubt there is anything you can say legally that would claim otherwise. Technically, machine guns and post ban AW's are allowed in CA, you just need the sheriff to approve it. Until the SCOTUS says that oversteps the protections of the 2A, we are stuck.

Im not approving it, Im cognizant that is the way it is. Its also the reason I am making the move to TX.

cr250chevy
10-21-2013, 9:45 PM
So basically the ONLY government entity that has the cahoonas to overthrow a law on a constitutional basis is the Supreme Court? And even they do not want to pick up the gun cases...
Who then I ask is responsible for upholding the 2nd amendement of constitution?

VendetAR
10-21-2013, 9:56 PM
So basically the ONLY government entity that has the cahoonas to overthrow a law on a constitutional basis is the Supreme Court? And even they do not want to pick up the gun cases...
Who then I ask is responsible for upholding the 2nd amendement of constitution?

Wel when you, I and about 1 million other guys like us say NO MORE, SCOTUS or the legislature is about all you get.

*****, moan and cry, but until its in writing that you wont be imprisoned for owning a normal rifle, there isn't much you can do.

enron
10-21-2013, 10:00 PM
We don't know what evidence they introduced to show that AKs are in "common use", and I doubt they made the typical use argument at all. This is not the kind of case that makes good precedent. That said, there isn't much harm done really, assuming no appeal. Hopefully this can be de-published.

What is the issue with appealing this? How do we get a case going forward to challenge these worthless feature bans post Heller without involving some sort of criminal prosecution?


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HiveDR.
10-21-2013, 10:43 PM
What is being said is the AK in question is a full featured unregistered AK, this makes it under CA law an assault rifle. Therefor it is as illegal in CA as would a machine gun be. Not that it is a machine gun, but is equally illegal too a machine gun.

kcbrown
10-22-2013, 4:00 AM
It baffles me that this still isn't obvious to everybody here.

Most people don't operate in the domain of logic the way I do. I'm a realist. The domain of logic is my home, as it must be, for logic is the formalization of the cause and effect nature of the real world itself, the essence of the real world abstracted into a usable form.

So it doesn't surprise me that there are many who don't grasp the truth of what you quoted. It requires a solid grasp of logic to truly understand it.

Tincon's got a good head on his shoulders, but he's training for a field that has eschewed logic in favor of an arbitrary and self-serving set of rules that it has defined for itself (http://www.calguns.net/calgunforum/showpost.php?p=12301520&postcount=221) and which it has no compunction about violating at any time. In that world, words do not mean what they say, they mean what the court reading them wants them to mean. I'd wager that it's going to be difficult for him to keep the judicial arena and the arena of logic straight, but keep it straight he must if he is to keep his feet planted in the real world.

Note that just because the rules in the judicial arena are arbitrary and self-serving does not mean that the judiciary will not use logic. It will, when doing so will serve its ends. Such is the case here. The logical outcome of the "not typically possessed" test is for bans to be bootstrapped into "Constitutionality" by their mere passage, and because that is an outcome the courts desire, said bans will be upheld on that logical basis. But if the nature of the test were such that logical application of it yielded the doom of the ban, then the courts would eschew logic in order to uphold the ban. For the courts, logic is but a tool to be used or discarded, as needed, for the purpose of achieving the ends the courts wish to achieve.

fizux
10-22-2013, 5:25 AM
Sorry, I guess I missed the lecture in Con Law where they said there was a constitutional right to take drugs. Can you cite the language for me?
Some would say the "pursuit of happiness" language is pretty clear...

nobody_special
10-22-2013, 6:27 AM
It baffles me that this still isn't obvious to everybody here.

It baffles me that people still believe in the fiction of a "law abiding citizen." There is no such thing, especially as regards to gun owners in the eyes of our government.

CitaDeL
10-22-2013, 6:53 AM
Some would say the "pursuit of happiness" language is pretty clear...

That is a citation of the Declaration of Independence, not the U.S. Constitution.

chrisn
10-22-2013, 7:05 AM
Most people don't operate in the domain of logic the way I do. I'm a realist. The domain of logic is my home, as it must be, for logic is the formalization of the cause and effect nature of the real world itself, the essence of the real world abstracted into a usable form.

The phases "[I operate in] the domain of logic" and "I'm a realist" can only co-exist in one's head if your definition of "logic" includes rational predictions of irrational/illogical/biased actions of others. It all becomes circular.

Untamed1972
10-22-2013, 7:28 AM
When will the supposed 2A supporting Anti's and the courts just issue a list of what they think the 2A DOES include? :rolleyes:

kcbrown
10-22-2013, 7:29 AM
The phases "[I operate in] the domain of logic" and "I'm a realist" can only co-exist in one's head if your definition of "logic" includes rational predictions of irrational/illogical/biased actions of others. It all becomes circular.

No, it doesn't, and it isn't (circular, that is).

Rationality is not a requirement for consistency, and bias does not diminish predictability.

Logic in this case is that which is being applied to the evidence. It is not being used for the purpose of explaining how the actions in question are sensible, it is being used for the purpose of pruning the tree of possible actions on the basis of what has been observed in order to arrive at a prediction of what actions will be taken (and what actions will be avoided).

curtisfong
10-22-2013, 8:01 AM
The phases "[I operate in] the domain of logic" and "I'm a realist" can only co-exist in one's head if your definition of "logic" includes rational predictions of irrational/illogical/biased actions of others. It all becomes circular.

It is only circular if your model is unable (or you are unwilling) to make testable and falsifiable claims.

kcbrown's (easily) testable claim was that the phrase "in common use" would be abused to exclude fireams no longer in common use due to the law (rather than, say, impracticality).

And, as usual, his claim was not proven false, since this is precisely what happened. tincon, who is generally a rational person, surprised me (but not, apparently, kcbrown :) ) by denying this was possible.

cr250chevy
10-22-2013, 8:11 AM
I would feel a lot better about securing semi auto rifles with an m1a or mini 14 going to the Supreme Court instead of the all evil, terrorist only owned, "AK 47."
If the punishment is the same as a full auto, the why don't we all justice our full auto? Rediculous...

kcbrown
10-22-2013, 8:49 AM
That is a citation of the Declaration of Independence, not the U.S. Constitution.

It is, but that does not diminish its validity. It is nonsensical to argue that the reasons for which the American Revolution were fought were not applicable to the subsequent foundation of the country.

No, the Declaration of Independence carries enormous weight in that regard, even if it is not explicitly incorporated by reference into the Constitution.

zhyla
10-22-2013, 8:54 AM
kcbrown's (easily) testable claim was that the phrase "in common use" would be abused to exclude fireams no longer in common use due to the law (rather than, say, impracticality).


I get what you're saying, but what about Heller? There were virtually no weapons in common use in D.C. at the time that Heller struck down their handgun ban. If Calfornia decided to classify all handguns as assault weapons I would expect that would eventually be struck down, as it was in Chicago. There's two ways to interpret this:

1. "In common use" means across the nation. This is still circular, but more in our favor.

2. "In common use" means what normal citizens find normal and usable and would possess if given the chance. I think this is more believable, and allows for the bootstrapping in D.C. and Chicago. But I'm not a lawyer and definitely not a judge.

Either way, it doesn't matter does it? The judge basically just stands on People v. James. And that basically turns on the probably false assertion that "assault weapons, like machine guns, are not in common use by law-abiding citizens for lawful purposes".

curtisfong
10-22-2013, 9:15 AM
Either way, it doesn't matter does it? The judge basically just stands on People v. James. And that basically turns on the probably false assertion that "assault weapons, like machine guns, are not in common use by law-abiding citizens for lawful purposes".

True. The only real question is which fallacy is more vulnerable to attack.

fr33domfightr
10-22-2013, 9:24 AM
As in other court cases, this court based their reasoning on past precedents, like the SBS/Miller. Did anyone ever challenge the SBS ruling by the SCOTUS, regarding the arbitrary nature of barrel length? Was the SBS registration really about taxes (and probably to monitor suspected Gangsters), rather than barring SBS from ownership?

Regarding the speed at which one could fire, one could argue most guns are similar to full auto weapons in that they can fire quickly if its semi-auto, DA revolver, or even with a lever action. I would expect, without any prior laws barring them, people all over the country would be owning full auto guns/rifles.

Is the purpose of the Appellate Court to defend State Law, or are they suppose to be unbiased?

Fatgunman
10-22-2013, 9:57 AM
As in other court cases, this court based their reasoning on past precedents, like the SBS/Miller. Did anyone ever challenge the SBS ruling by the SCOTUS, regarding the arbitrary nature of barrel length? Was the SBS registration really about taxes (and probably to monitor suspected Gangsters), rather than barring SBS from ownership?

Regarding the speed at which one could fire, one could argue most guns are similar to full auto weapons in that they can fire quickly if its semi-auto, DA revolver, or even with a lever action. I would expect, without any prior laws barring them, people all over the country would be owning full auto guns/rifles.

Is the purpose of the Appellate Court to defend State Law, or are they suppose to be unbiased?

Hopefully this case will restore a lot of the 2A taken from us.

vtabiker
10-22-2013, 10:20 AM
As in other court cases, this court based their reasoning on past precedents, like the SBS/Miller. Did anyone ever challenge the SBS ruling by the SCOTUS, regarding the arbitrary nature of barrel length? Was the SBS registration really about taxes (and probably to monitor suspected Gangsters), rather than barring SBS from ownership?

Regarding the speed at which one could fire, one could argue most guns are similar to full auto weapons in that they can fire quickly if its semi-auto, DA revolver, or even with a lever action. I would expect, without any prior laws barring them, people all over the country would be owning full auto guns/rifles.

Is the purpose of the Appellate Court to defend State Law, or are they suppose to be unbiased?

That's the funny thing about it, anyone under federal law that want to own a machine gun, SBR, SBS can if you jump through the NFA hoops and legal own a firearm, but it's stated that then say you can't have them. So it seems like a circular argument to say they're especially dangerous, when they're really just taxed by the feds and you can own them if you pay the tax.

zhyla
10-22-2013, 10:32 AM
True. The only real question is which fallacy is more vulnerable to attack.

I think it would be trivial to show that AK-pattern rifles and AR-pattern rifles are extremely common/popular across the country and California as well. They pretty much dominate the non-rimfire sales lately. And maybe that would be something SCOTUS would touch since it's clear-cut.

fr33domfightr
10-22-2013, 11:12 AM
From briefly skimming the decision, it stated that Zondorak waived his right to a Jury Trial in the Superior Court. Why would he do that?

BumBum
10-22-2013, 11:19 AM
From briefly skimming the decision, it stated that Zondorak waived his right to a Jury Trial in the Superior Court. Why would he do that?

Many firearms attorneys will advise this for two reasons.

First, firearms law is usually too complicated for your average juror to understand. A judge is often in a better position to apply the law correctly. Of course, they don't always do this, but the argument is that a jury will misapply it more often.

Second, remember that many jurors will hold anti-gun sentiments. Even jurors that are not outwardly anti-gun, but who doesn't have familiarity with firearms, will be spooked by the pictures of the "evil-looking" guns the prosecutor keeps showing. Plus, what if some gun-related tragedy hits the news during the case, right before deliberations? A judge (hopefully) won't be so emotionally swayed.

SOAR79
10-22-2013, 11:21 AM
let's let the dust clear first

mag360
10-22-2013, 11:25 AM
The problem with their logic is it implies the legislature could ban everything except "y"and it would still be constitutional because those other guns are no longer in common use and besides you can still get "y" that the gov hasnt arbitrarily called dangerous and unusual.. They are bastardizing "common use" to fit what they want it to, rather than what it actually means.

fr33domfightr
10-22-2013, 11:35 AM
Many firearms attorneys will advise this for two reasons.

First, firearms law is usually too complicated for your average juror to understand. A judge is often in a better position to apply the law correctly. Of course, they don't always do this, but the argument is that a jury will misapply it more often.
.
.
.

Thanks for the clarification.

Based on your first sentence, one might ask, how then is the general public able to understand and comply with the law this guy is being charged with?

Regarding the ban itself and Zondorak's charges, he wouldn't be charged if he had owned and registered the firearm during the grace period. How much more dangerous is his weapon from those that were registered?!

BumBum
10-22-2013, 12:45 PM
Based on your first sentence, one might ask, how then is the general public able to understand and comply with the law this guy is being charged with?!

You've hit the nail on the head, sir. That is an often-cited criticism of the gun control laws that we have to deal with. The short answer is that they have to do the best they can. I'm an attorney and even I struggle at times. It has to even worse for a layperson. Unfortunately, ignorance of the law is not an excuse if you are found to be in violation.

nastyhabts26
10-22-2013, 12:47 PM
Man it seems like behind every blade of grass there is a liberal with a gun control agenda.

Centurion_D
10-22-2013, 12:57 PM
So let me get this straight. This guy got busted with a un-registered AW (or weapon with evil features) and lost his fight in court. Is this pretty much what it's about?

ThePatriot
10-22-2013, 1:11 PM
So let me get this straight. This guy got busted with a un-registered AW (or weapon with evil features) and lost his fight in court. Is this pretty much what it's about?

Yes, but it is the way the court ruled, they never even cited the AW ban but make a very troubling argument which involves declaring that semi autos are not protected by the 2A and are basically the same as full auto rifles.

Tincon
10-22-2013, 1:17 PM
So let me get this straight. This guy got busted with a un-registered AW (or weapon with evil features) and lost his fight in court. Is this pretty much what it's about?

Yes.

they never even cited the AW ban but make a very troubling argument which involves declaring that semi autos are not protected by the 2A and are basically the same as full auto rifles.

None of that is true.

prometa
10-22-2013, 1:37 PM
The panel uses James' upholding of the AWB on the basis that an AK47 is as dangerous as an SBS:
We agree with James that the ban on AK series rifles does not impinge on rights protected by the Second Amendment because assault weapons "are at least as dangerous and unusual as the short-barreled shotgun" (James, supra, 174 Cal.App.4th at p. 677), which Miller concluded (with apparent approval from Heller) was outside the scope of the Second Amendment's guarantee. (James, at pp. 674-675.) Indeed, assault weapons are only slightly removed from M-16 type weapons that Heller likewise appeared to conclude were outside the scope of the Second Amendment's guarantee. (emphasis mine)

The logic of James is flawed here. Equating the danger of an AK47 to an SBS is an apples-to-oranges comparison. What makes an AK47 dangerous (according to legislative logic, anyway) is the rate of fire and reloadability, neither of which are applicable to a short barreled shotgun. Instead, the AK47 should have been compared to the great number of legal semiautomatic detachable magazine rifles that are very commonly used by law-abiding citizens for legitimate purposes. (As well as the firepower of the now-protected semiautomatic handgun) In fact, the ruling does this tangentially while addressing a side argument made by the defendant:


Zondorak also appears to assert that California's ban on AK series rifles is unconstitutional because, according to expert testimony he introduced below, there are many weapons that may fall outside the ambit of section 12880's bans on semi-automatic assault weapons even though these excluded weapons are (or can be converted into) weapons as dangerous as the AK series rifles. However, this observation appears to confuse whether a particular legislative enactment is invalid as impinging on Second Amendment rights with the distinct issue of whether that enactment might be invalid under the equal protection clause, and is thus irrelevant to our analysis because Zondorak has not raised any equal protection claim. Even had Zondorak raised an equal protection challenge, that claim would fail because "[n]othing compels the state 'to choose between attacking every aspect of a problem or not attacking the problem at all.' [Citation.] Far from having to 'solve all related ills at once' [citation], the Legislature has 'broad discretion' to proceed in an incremental and uneven manner without necessarily engaging in arbitrary and unlawful discrimination [citations]."

Essentially, what the court is saying is that the legislature actually has the legal power to ban all semiautomatic rifles with detachable magazines (that possess equal firepower to an AK47), and just because they haven't done that yet doesn't raise an equal protection issue. That means they would have upheld SB374 under Heller and Miller because, even though the rifles in question are very common and used for lawful purposes by the law-abiding, they are too dangerous for citizens to possess

Of course the "common use in the time" standard set by Heller is circular, as pointed out by a number of other posters. But, under the framework used here, we never get to consider the commonality because the AK47 is already too dangerous and therefore not protected by the second amendment. Until SCOTUS weighs in on standards for determining dangerousness, under the logic of this court Heller is easily avoidable simply by declaring a firearm too dangerous and thus not protected.

fr33domfightr
10-22-2013, 1:47 PM
The panel uses James' upholding of the AWB on the basis that an AK47 is as dangerous as an SBS:
(emphasis mine)

The logic of James is flawed here. Equating the danger of an AK47 to an SBS is an apples-to-oranges comparison. What makes an AK47 dangerous (according to legislative logic, anyway) is the rate of fire and reloadability, neither of which are applicable to a short barreled shotgun. Instead, the AK47 should have been compared to the great number of legal semiautomatic detachable magazine rifles that are very commonly used by law-abiding citizens for legitimate purposes. (As well as the firepower of the now-protected semiautomatic handgun) In fact, the ruling does this tangentially while addressing a side argument made by the defendant:



Essentially, what the court is saying is that the legislature actually has the legal power to ban all semiautomatic rifles with detachable magazines (that possess equal firepower to an AK47), and just because they haven't done that yet doesn't raise an equal protection issue. That means they would have upheld SB374 under Heller and Miller because, even though the rifles in question are very common and used for lawful purposes by the law-abiding, they are too dangerous for citizens to possess

Of course the "common use in the time" standard set by Heller is circular, as pointed out by a number of other posters. But, under the framework used here, we never get to consider the commonality because the AK47 is already too dangerous and therefore not protected by the second amendment. Until SCOTUS weighs in on standards for determining dangerousness, under the logic of this court Heller is easily avoidable simply by declaring a firearm too dangerous and thus not protected.

Good analysis.

Regarding this statement, "even though the rifles in question are very common and used for lawful purposes by the law-abiding, they are too dangerous for citizens to possess."

If that's the reasoning for banning possession, why weren't AK Series Rifles confiscated? Does registration make them safe/r? And would the defendant really be more dangerous since he didn't register?

mag360
10-22-2013, 1:48 PM
9/30/14 ban all guns

Court ruling 10/1/14

Well that is perfectly legal because non of those guns are in common use. They are all illegal and are illegal because the legislature says they are dangerous and unusual.

RobertMW
10-22-2013, 1:52 PM
Yes, but it is the way the court ruled, they never even cited the AW ban but make a very troubling argument which involves declaring that semi autos are not protected by the 2A and are basically the same as full auto rifles.

First they quote Heller:
(emphasis mine)

Then, they quote Heller's upholding of Miller's ban on dangerous weapons:
(emphasis mine again)

However, later in the judgement, they use James upholding of the AWB on the basis that an AK47 is as dangerous as an SBS:


The logic of James is flawed here. Equating the danger of an AK47 to an SBS is an apples-to-oranges comparison. What makes an AK47 dangerous (according to legislative logic, anyway) is the rate of fire and reloadability, neither of which are applicable to a short barreled shotgun. Instead, the AK47 should have been compared to the great number of legal semiautomatic detachable magazine rifles that are very commonly used by law-abiding citizens for legitimate purposes. (As well as the firepower of the now-protected semiautomatic handgun) In fact, the ruling does this tangentially while addressing a side argument made by the defendant:



Essentially, what the court is saying is that the legislature actually has the legal power to ban all semiautomatic rifles with detachable magazines (that possess equal firepower to an AK47), and just because they haven't done that yet doesn't raise an equal protection issue. That means they would have upheld SB374 under Heller and Miller because, even though the rifles in question are very common and used for lawful purposes by the law-abiding, they are too dangerous for citizens to possess

This is a very good summary of the case findings. The judges are flying down a slippery slope by adding in such a large "class of weapons" to what they feel could be deemed illegal. I only hope that the end of the slope is a very short stop after a very fast fall.

As a design engineer, my brain wanted to smear itself across the nearest wall when I read...
Indeed, assault weapons are only slightly removed from M-16 type weapons that Heller likewise appeared to conclude were outside the scope of the Second Amendment's guarantee.
So they feel that a semi-automatic rifle is only "slightly removed" from its fully automatic counterparts. That would be like saying that a 4 stroke gasoline engine is "slightly removed" from a turbo-diesel engine. It just shows their utter lack of understanding, and lack of want to learn the truth behind what they are saying.

If I want to know how to correctly word a sentence, or cite a paragraph, or use Latin phrases, I will get a lawyers advice. When a lawyer wants to know what a device does and how it does so, you contact someone like me.

I'm not saying that the world should be run by engineers (we have managers for a reason) but dammit we sure as hell should be consulted before someone opens their mouth to say something they don't understand.

fr33domfightr
10-22-2013, 2:01 PM
This is a very good summary of the case findings. The judges are flying down a slippery slope by adding in such a large "class of weapons" to what they feel could be deemed illegal. I only hope that the end of the slope is a very short stop after a very fast fall.

As a design engineer, my brain wanted to smear itself across the nearest wall when I read...

So they feel that a semi-automatic rifle is only "slightly removed" from its fully automatic counterparts. That would be like saying that a 4 stroke gasoline engine is "slightly removed" from a turbo-diesel engine. It just shows their utter lack of understanding, and lack of want to learn the truth behind what they are saying.

If I want to know how to correctly word a sentence, or cite a paragraph, or use Latin phrases, I will get a lawyers advice. When a lawyer wants to know what a device does and how it does so, you contact someone like me.

I'm not saying that the world should be run by engineers (we have managers for a reason) but dammit we sure as hell should be consulted before someone opens their mouth to say something they don't understand.


"So they feel that a semi-automatic rifle is only "slightly removed" from its fully automatic counterparts."

I guess so. I could use that same argument and twist it in the profreedom direction, the spirit our country was founded on. I could say, since semi-automatic rifles are only slightly removed from the fully automatic counterparts, I see no reason why citizens should be barred ownership of fully automatic rifles.

fr33domfightr
10-22-2013, 2:15 PM
You've hit the nail on the head, sir. That is an often-cited criticism of the gun control laws that we have to deal with. The short answer is that they have to do the best they can. I'm an attorney and even I struggle at times. It has to even worse for a layperson. Unfortunately, ignorance of the law is not an excuse if you are found to be in violation.


After reading I had an epiphany.

Acknowledging the following:

1. Ignorance of the law is not an excuse if you're found to be in violation.

2. Hundreds of laws are passed each year with barely a peep from the media.

3. Many laws are time sensitive, ignoring them can make one criminally in violation.

Based on the above, I see a good cause for an Initiative Statute that demands the State make available to all citizens, currently residing in the state, and to any that may relocate in the state, a full set of current laws, written in plain English (or other requested language). Along with a summary page of time sensitive laws that must followed to remain in good legal standing.

First this will inform citizens of the laws on the books. Second, it will remind people of how many laws we actually have, and how many are being added year after year.

BumBum
10-22-2013, 2:37 PM
After reading I had an epiphany.

Acknowledging the following:

1. Ignorance of the law is not an excuse if you're found to be in violation.

2. Hundreds of laws are passed each year with barely a peep from the media.

3. Many laws are time sensitive, ignoring them can make one criminally in violation.

Based on the above, I see a good cause for an Initiative Statute that demands the State make available to all citizens, currently residing in the state, and to any that may relocate in the state, a full set of current laws, written in plain English (or other requested language). Along with a summary page of time sensitive laws that must followed to remain in good legal standing.

First this will inform citizens of the laws on the books. Second, it will remind people of how many laws we actually have, and how many are being added year after year.

I hate to sound facetious, but I cannot resist the urge, so here it goes:

It's called the law library. Every county in this state is required by law to have at least one. :D

VendetAR
10-22-2013, 2:53 PM
I hate to sound facetious, but I cannot resist the urge, so here it goes:

It's called the law library. Every county in this state is required by law to have at least one. :D

You dont even have to go to a library, the F'n laws are posted online, for free :facepalm:

I can only imagine the cost to provide every single resident both living here and entering the state to be given a comprehensive volume of every law on the books. I get an updated DVD every year from Bureau of Automotive Repair and I barely glance through it. There is no way in hell that I am gonna sit down and read all the new codes and restrictions from A-Z for everything in the state from Agriculture to Zookeeping.

That is one of the worst ideas I have ever heard.

postal
10-22-2013, 2:54 PM
I agree it sets a REALLY BAD precedent by the logic and excuse of the ruling itself- IE- not "common use"- this is bad.... really bad.....

However, I just had an interesting idea about Miller.....

Miller says SBS is not protected, dangerous/unusual whatever.....,,.

Heller **EMPHASIZES** self defense in the home....

One could argue that a "Goose gun" (long barreled shotgun) is more dangerous than a short barreled shot gun because the higher velocity of the shot... means more danger...

A short barreled shotgun has a LOWER velocity, and is therefore "safer".... than a goose gun.....

Then carry it home with Heller... with self defense in the home.... that a SHORT BARRELED SHOTGUN is easier to maneuver in tight confines of small homes/hallways/narrow doorways... and Heller is ALL ABOUT self defense in the home.....

Remind them of Bugs Bunny cartoons with someone trying to carry a long wood plank inside a doorway sideways.... bonk, re orient, bonk.... re orient... bonk!...... Goose gun..... not an issue with an SBS.....


All the while... Goose guns are still protected under the concept of lawful hunting/sporting purposes....

RMP91
10-22-2013, 3:02 PM
So this ruling doesn't set gun rights back 30 years?

The way I am reading this, it sounds like it is both declaring that semi-autos are not protected by the 2nd Amendment, while at the same time saying that semi autos are no different from machine guns?

This is a very foreboding and game-breaking ruling if true...

Wolverine
10-22-2013, 3:08 PM
I hate to sound facetious, but I cannot resist the urge, so here it goes:

It's called the law library. Every county in this state is required by law to have at least one. :D

He did specify "written in plain English" so we have to give him a pass and acknowledge that to give him what he requested the state would have to provide free legal counsel to translate the law from statutory legalese into English.

BumBum
10-22-2013, 3:33 PM
He did specify "written in plain English" so we have to give him a pass and acknowledge that to give him what he requested the state would have to provide free legal counsel to translate the law from statutory legalese into English.

The law library does carry numerous practice guides on most areas of law (although ironically enough, you won’t find Chuck Michel’s book on firearms law). However, they are still mainly written by attorneys for attorneys. But that is the best you’re going to get. The problem with going to straight “plain English” is that you tend to lose a lot of the nuances that make the laws what they are, and then you’re right back where you began about not knowing what the law really is.

Sgt Raven
10-22-2013, 3:43 PM
hey jrr. Ever heard of a non commie, non statist CA judge? Let us know.


If that was the /case, then how did we get the Harrott decision? :TFH:

Librarian
10-22-2013, 4:16 PM
The law library does carry numerous practice guides on most areas of law (although ironically enough, you won’t find Chuck Michel’s book on firearms law). However, they are still mainly written by attorneys for attorneys. But that is the best you’re going to get. The problem with going to straight “plain English” is that you tend to lose a lot of the nuances that make the laws what they are, and then you’re right back where you began about not knowing what the law really is.

Truth.

'Plain English' and 'legalese' share some vocabulary (but not always the same meanings for words) and grammatical structure.

Look, for one example, at Statutory Interpretation: General Principles and Recent Trends (http://www.fas.org/sgp/crs/misc/97-589.pdf) a 2008 version of a doc from the Congressional Research Service. (There may be newer, but for now this one suffices.) Just for words/language, the TOC has Canons of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Ordinary and Specialized Meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Terms of art . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
-- Ordinary meaning and dictionary definitions . . . . . . . . . . . . . . . . . . . . . 6
-- And/or . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-- Definite/indefinite article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-- Shall/may . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
-- Singular/plural . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
General, Specific, and Associated Words . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Grammatical Rules, Punctuation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Statutory Language Not to be Construed as “Mere Surplusage” . . . . . . . . . 12
Same Phrasing in Same or Related Statutes . . . . . . . . . . . . . . . . . . . . . . . . 13
Different Phrasings in Same Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
“Congress Knows How to Say ...” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Statutory Silence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
De Minimis Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
There's a reason folks hire lawyers.

Hoop
10-22-2013, 4:18 PM
Seems to me the judge wanted to uphold current law so he went back and found precedence. Not to mention it's a scary AK vs an M1 carbine which probably did not help.

That's one of the things about laws, especially 'changing' long established ones like the AWB etc, not many judges are willing to overturn them.

fr33domfightr
10-22-2013, 4:40 PM
You dont even have to go to a library, the F'n laws are posted online, for free :facepalm:

I can only imagine the cost to provide every single resident both living here and entering the state to be given a comprehensive volume of every law on the books. I get an updated DVD every year from Bureau of Automotive Repair and I barely glance through it. There is no way in hell that I am gonna sit down and read all the new codes and restrictions from A-Z for everything in the state from Agriculture to Zookeeping.

That is one of the worst ideas I have ever heard.

This exactly proves my point, and the problem. No one is going to sit down and read from A-Z all the laws in our state, nor could they comprehend them, especially in a state that passes hundreds of laws every year.

Therefore, ignorance of the law should be expected. And therefore, a criminal violation should not be charged.

Making the law easily available was to drive home the insanity in the state legislature. If thats what it takes to inform people, which may result in law reduction, then its a worthwhile effort.

Sent from my SPH-D710 using Tapatalk 2

prometa
10-22-2013, 4:43 PM
So they feel that a semi-automatic rifle is only "slightly removed" from its fully automatic counterparts. That would be like saying that a 4 stroke gasoline engine is "slightly removed" from a turbo-diesel engine. It just shows their utter lack of understanding, and lack of want to learn the truth behind what they are saying.

Let me play devil's advocate and argue on behalf of the judges for a second. A semi automatic AK-47 is the same shape and size as a fully automatic one, and it uses the same magazines and cartridges. That means that any design/engineering work done to create an easy to handle, easy to fire weapon, will naturally come over to the semi automatic version too. If the weapon has been optimized for killing on the battle field, much of its dangerousness remains, even if the fully automatic firing capacity has been removed.

The counter argument would be that an automatic weapon is substantially more dangerous simply because it is automatic. Given the limited size of the magazines in an AK, the automatic firing capacity doesn't significantly increase dangerousness compared to the much longer belts an M2 or M60 can fire, because the AK runs out of rounds so quickly. (You could argue that large magazines are available for AKs, but then you are putting the dangerousness in the magazine, in essence supporting a 10 round magazine limit)

I am not a lawyer, so I talk out of my butt instead. That said, I'd rather argue the semiautomatic AK47 is no more dangerous than the semiautomatic handgun Heller has already protected than argue a semiautomatic AK47 is substantially less dangerous than an automatic version or a SBS.


The way I am reading this, it sounds like it is both declaring that semi-autos are not protected by the 2nd Amendment, while at the same time saying that semi autos are no different from machine guns?

It's unclear whether the judges think all semi-automatics are bannable, or just the "assault weapon" variety (i.e do bannable features make the rifle more dangerous?). I think they would support a total ban on semiautomatics with detachable mags based on the last section I quoted in my earlier posts, though it doesn't prove it.

But, keep in mind this is only an appellate court of California. In the wake of McDonald, precedent setting cases in the 9th and SCOTUS can indirectly overturn this ruling. As can a CA Supreme Court (SCOCA?) ruling, though don't hold your breath on that one.

VendetAR
10-22-2013, 5:11 PM
This exactly proves my point, and the problem. No one is going to sit down and read from A-Z all the laws in our state, nor could they comprehend them, especially in a state that passes hundreds of laws every year.

Therefore, ignorance of the law should be expected. And therefore, a criminal violation should not be charged.

Making the law easily available was to drive home the insanity in the state legislature. If thats what it takes to inform people, which may result in law reduction, then its a worthwhile effort.

Sent from my SPH-D710 using Tapatalk 2

The idea I get, actually doing it is worthless and expensive.

How many people that voted for Obama last year actually changed their mind about the ACA when shown the physical size of the law? I'd say none.

As far as using a lack of knowledge of the law as a valid defense, I believe there is a saying that ignorance of the law is not an excuse to break it.

Things need to change, but sending a 3k+ page annual update on all new and modified laws will do as much as having them available online as they are now which miniscule at best.

curtisfong
10-22-2013, 7:01 PM
The question is, how is a non-dangerous, sufficiently harmless weapon useful for self defense?

enron
10-22-2013, 7:14 PM
What is the issue with appealing this? How do we get a case going forward to challenge these worthless feature bans post Heller without involving some sort of criminal prosecution?

Can someone actually answer my question?

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Tincon
10-22-2013, 10:54 PM
The question is, how is a non-dangerous, sufficiently harmless weapon useful for self defense?

There has to be a lot more than that. The Supreme Court already rejected the argument that states should be allowed to ban guns because they are dangerous.

Municipal respondents maintain that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety. Brief for Municipal Respondents 11. And they note that there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries. Id., at 11, 13–17.The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category. See, e.g., Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (“The exclusionary rule generates ‘substantial social costs,’ United States v. Leon, 468 U.S. 897, 907, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), which sometimes include setting the guilty free and the dangerous at large”); Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (reflecting on the serious consequences of dismissal for a speedy trial violation, which means “a defendant who may be guilty of a serious crime will go free”); Miranda v. Arizona, 384 U.S. 436, 517, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (Harlan, J., dissenting); id., at 542, 86 S.Ct. 1602 (White, J., dissenting) (objecting that the Court's rule “[i]n some unknown number of cases ... will return a killer, a rapist or other criminal to the streets ... to repeat his crime”); Mapp, 367 U.S., at 659, 81 S.Ct. 1684. Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.

McDonald v. City of Chicago, Ill. (2010) 130 S.Ct. 3020, 3045 [177 L.Ed.2d 894]

The argument to ban must essentially say that this type of weapon is so usual and dangerous (probably to people other than the intended target) that it has no real use for self-defense and would be predominantly used by criminals if it were legal.

The AR platform rifle is the most popular sporting and self-defense rifle in the country. It is not more or less "unusually dangerous" than any other semi-auto magazine fed center-fire rifle of a similar caliber (including the AK at issue). Was this argument even made here? We don't know. This is a garbage criminal case, and those are almost guaranteed to have bad results, even in courts more friendly to guns than the CA state appellate courts.

Bottom line - this case just does not mean much. Federal courts are not bound by it, and those are the courts we will be attacking this law in. So take a deep breath and relax. The fight continues.

ETA: "We" are not appealing it (I hope), because it is a garbage criminal case litigated by a defense/personal injury lawyer (as opposed to a civil rights lawyer). No good can come from pushing this further.

curtisfong
10-22-2013, 11:15 PM
There has to be a lot more than. The Supreme Court already rejected the argument that states should be allowed to ban guns because they are dangerous.


So far so good.


The argument to ban must essentially say that this type of weapon is so usual and dangerous (probably to people other than the intended target) that it has no real use for self-defense

Also logical, but I doubt any court in CA is capable of that caliber of reason.

Obviously, such an argument should always be made.

and would be predominantly used by criminals if it were legal.

Unless a weapon's decrease in accuracy or tendency towards collateral damage is accompanied by a corresponding deadliness to its intended target, I see no reason why a criminal would find such a hypothetical weapon more desirable than a more accurate weapon. Seems to me that any attempt to correlate such a set of features would not be helpful to our case in the long run.


The AR platform rifle is the most popular sporting and self-defense rifle in the country. It is not more or less "unusually dangerous" than any other semi-auto magazine fed center-fire rifle of a similar caliber (including the AK at issue). Was this argument even made here? We don't know.

While logical and obviously true, I don't see this argument working in any court in CA.

That said, it should still be made when possible (just like the dangerous/unusual argument you made above).

I am certain both will fall of deaf ears, though.

Tincon
10-23-2013, 12:37 AM
Unless a weapon's decrease in accuracy or tendency towards collateral damage is accompanied by a corresponding deadliness to its intended target, I see no reason why a criminal would find such a hypothetical weapon more desirable than a more accurate weapon. Seems to me that any attempt to correlate such a set of features would not be helpful to our case in the long run.


The idea is that a criminal would be less concerned with "collateral damage" than a law-abiding citizen. But that is just one factor to look at. I think actual criminal use vs lawful use should be a bigger factor, as it is much less speculative. The modern 2A test may well be something that could be described as "the law-abiding citizen" test. As in, would reasonable law-abiding citizen have a lawful use for this weapon?


While logical and obviously true, I don't see this argument working in any court in CA.


I really don't care what the CA courts think. I don't expect them to overturn gun laws any more than I would have expected state courts in the 1950s south to overturn bans on desegregation. Ultimately the Federal courts will decide this issue. So far we are 2-0 at SCOTUS. Doom and gloom sayers aside, I have to reason not to expect that trend to continue.

kcbrown
10-23-2013, 6:41 AM
So far we are 2-0 at SCOTUS.


No, we are 2-5 at SCOTUS, at best. Refusal on the part of SCOTUS to hear a case of this import while it addresses trivialities is a loss for whichever side is appealing, and that has always been us.



Doom and gloom sayers aside, I have to reason not to expect that trend to continue.That's because you're optimistic. :D

There's nothing wrong with that, mind you. Just don't be surprised when, suddenly, you find things crashing down around you. It's not like those of us who are using a purely evidence and logic based approach didn't warn you...

And note that I, at least, acknowledge that I could be wrong. I will modify my views accordingly if that proves to be the case. Regardless, we have both made testable predictions, which are the best kind. Time to grab the popcorn and start watching...

fr33domfightr
10-23-2013, 7:11 AM
I found the following on the California Courts website, regarding the Courts of Appeal:

"The panel also decides whether to certify the opinion
for publication. In general, an opinion is published if it
establishes a new rule of law, involves a legal issue of con-
tinuing public interest, criticizes existing law, or makes a
significant contribution to legal literature. During fiscal
year 2001–2002, 7 percent of California Court of Appeal
opinions were ordered published."

"Published opinions establish precedent and must be
followed by all California superior courts. Unpublished
opinions do not establish precedent and may not be cited
as authority to support an argument."

REVIEW OF APPELLATE DECISIONS
"Decisions of the Courts of Appeal are subject to discre-
tionary review by the California Supreme Court as well as
to review in the U.S. Supreme Court based on the U.S.
Constitution and federal statutes."

"A presiding justice and two or more associate justices
sit in each appellate district or division. An individual must
have 10 years of experience as a lawyer or a judge in Cali-
fornia to qualify to serve as an appellate justice. Justices are
appointed by the Governor and must be confirmed by the
Commission on Judicial Appointments, which consists of
the Chief Justice, the Attorney General, and the presiding
justice of the district. Following confirmation, each justice
must be approved by the voters in the next gubernatorial
election and at the end of his or her term."

I added the emphasis.

fizux
10-23-2013, 7:14 AM
No, we are 2-5 at SCOTUS, at best. Refusal on the part of SCOTUS to hear a case of this import while it addresses trivialities is a loss for whichever side is appealing, and that has always been us.
I disagree for two reasons:
1. We won Heller at DC CA, so the District asked for cert (yeah, that's nitpicky); and
2. Denial of cert in Woolard, etc., doesn't set any SCOTUS precedent that harms us. As far as SCOTUS precedent, we have Heller and McDonald, both of which help us. I think they want to see what the 9th has to say before deciding "bear" (especially since the 9th has the largest fraction of the may-issue population).

kcbrown
10-23-2013, 7:25 AM
I disagree for two reasons:
1. We won Heller at DC CA, so the District asked for cert (yeah, that's nitpicky); and


I guess I should have made it clear that it has always been us asking for cert for those cases that I cited as losses.



2. Denial of cert in Woolard, etc., doesn't set any SCOTUS precedent that harms us. As far as SCOTUS precedent, we have Heller and McDonald, both of which help us. I think they want to see what the 9th has to say before deciding "bear" (especially since the 9th has the largest fraction of the may-issue population).Oh, but it does set precedent. You see, SCOTUS refusal to grant cert cements the decision at that appellate court level, which can then be cited by other appeals courts throughout the country. It's not binding precedent the way a direct SCOTUS decision would be, but it's darned close to it.

Failure of SCOTUS to address an issue like that is tacit permission from SCOTUS for the states to engage in the behavior being challenged. It's like a kid doing something questionable in class, one of the other kids asking the teacher if what that kid did was okay, and getting no answer. The other kids will rightly believe that what the original kid did was perfectly okay with the teacher. And that's just one kid. When several kids do the same thing and the teacher continues to refuse to answer, the kids basically know that the behavior in question is "okay" with the teacher.

prometa
10-23-2013, 2:39 PM
There has to be a lot more than that. The Supreme Court already rejected the argument that states should be allowed to ban guns because they are dangerous.

There is a difference between banning guns and banning a gun or a type of gun. A type of gun may be banned because of its danger, but one cannot categorically ban wide swaths of guns.

Tincon
10-23-2013, 3:01 PM
There is a difference between banning guns and banning a gun or a type of gun. A type of gun may be banned because of its danger, but one cannot categorically ban wide swaths of guns.

I don't think the distinction you are making exists. No gun or guns can be banned on the basis of extrinsic evidence of a disputed public safety issue. The gun itself must be "unusually dangerous", as compared to a handgun, or possibly what a reasonable law abiding citizen would use (the standard still isn't completely clear). But a "wide swath" of guns fits that description, they could all be banned. AR/AK semiauto rifles are NOT unusually dangerous.

kcbrown
10-23-2013, 3:25 PM
I don't think the distinction you are making exists. No gun or guns can be banned on the basis of extrinsic evidence of a disputed public safety issue. The gun itself must be "unusually dangerous", as compared to a handgun, or possibly what a reasonable law abiding citizen would use (the standard still isn't completely clear). But a "wide swath" of guns fits that description, they could all be banned. AR/AK semiauto rifles are NOT unusually dangerous.

The problem, I think, is that the courts have been interpreting the "dangerous and unusual" language to mean "dangerous or unusual", and thus if the firearm is in either category, it is suddenly exempt from protection.

And, of course, that means that any and every firearm is exempt from protection, because all firearms are dangerous simply as a result of being weapons.

But even if they stuck with the original language ("dangerous and unusual"), you'd still wind up with firearms being deemed exempt from protection simply because the fact that a firearm is unusual doesn't make it unusually dangerous.


I agree with you that the language should be "unusually dangerous", but that's not what was written.


The fact of the matter is that the entire stance of the judiciary is now oriented towards supporting the government at essentially any cost. That's what "presumption of constitutionality" and "constitutional avoidance" is all about. The courts are no longer a real check on the government except in rare circumstances. They exist now primarily to rubber-stamp the machinations of the government. They have lost their way, and need to be replaced.

fr33domfightr
10-23-2013, 4:30 PM
Regarding the "dangerous and unusual" term, who was originally thought it to be a danger to? The shooter, shootee, bystanders, or the public at large?

Sent from my SPH-D710 using Tapatalk 2

Tincon
10-24-2013, 4:47 AM
The problem, I think, is that the courts have been interpreting the "dangerous and unusual" language to mean "dangerous or unusual", and thus if the firearm is in either category, it is suddenly exempt from protection.

And, of course, that means that any and every firearm is exempt from protection, because all firearms are dangerous simply as a result of being weapons.

I think you are just way off with your interpretation, which is clearly unsupported by actual result in Heller and McDonald.

Regarding the "dangerous and unusual" term, who was originally thought it to be a danger to? The shooter, shootee, bystanders, or the public at large?

It really isn't clear. The quote from Heller is: We think that limitation is fairly supported by the historical tradi*tion of prohibiting the carrying of “dangerous and unusual weapons.” The Court then gives several cites.

The cites are all very old, but it seems like they tend to suggest weapons which, by their brutal nature, would lead "to the terror of the by-standers: and it is called an affray because it disturbs the public peace, by affrighting or making men afraid. The “affrighting” or “putting in fear” is one of the ingredients of the offence. . . . if persons arm themselves with deadly or unusual weapons for the purpose of an affray, and in such manner as to strike terror to the people, they may be guilty of this offence, without coming to actual blows." O'Neill v. State (1849) 16 Ala. 65, 67

Again here: "it seems certain there may be an affray when there is no actual violence: as when a man arms himself with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people; which is said always to have been an offence at common law, and is strictly prohibited by statute." State v. Langford (1824) 10 N.C. 381, 383-84

In fact one of the cites in that string (under "unusual or dangerous") deals with a situation where a person may have been guilty of such a public disturbance without being armed at all (he rode a horse through the courthouse).

Other weapons that would withstand a ban might be: "...pistols, dirks, daggers, slungshots, swordcanes, spears, brass-knuckles and bowie knives. Can it be understood that these were contemplated by the framers of our bill of rights? Most of them are the wicked devices of modern craft." English v. State (1872) 35 Tex. 473

Except of course we know that "pistols," or handguns, cannot now be banned as "unusual and dangerous". But maybe those were more frightening back in the day. It may well be that what can be banned is whatever happens to scare the crap out of people, as arbitrary as that may seem. But clearly SCOTUS is not willing to accept that just anything can be scary and therefore banned, as demonstrated by Heller. I would hope they will also carve out an exemption for the most common sporting rifle in the US.

kcbrown
10-24-2013, 7:15 AM
I think you are just way off with your interpretation, which is clearly unsupported by actual result in Heller and McDonald.


Yes, but I actually regard Heller and McDonald as the exception and not the norm, as regards the application of the what we speak of here.

The other courts have behaved much more the way I describe. See, e.g. US v Marzzarella ("It is arguably possible to extend the exception for dangerous and unusual weapons to cover unmarked firearms.", thus interpreting "unusual" to be sufficient to qualify as "dangerous and unusual") and US v Fincher ("Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use.", thus using lack of common ownership on the part of the law abiding population, i.e., being unusual, as sufficient qualification for "dangerous and unusual"). And, of course, People v James.

And those are citing Heller, thus illustrating that, despite your claim that my interpretation is not supported by Heller, the courts I cited disagree with you.


What's going on here? You now seem to be ignoring evidence that is right before your eyes in favor of your own interpretation of the law and/or court decisions (this isn't the first time you've done this, so I'm beginning to see a trend here). My claims are not about what interpretation of the law is valid, it is about how the courts will interpret the law and/or court decisions. I fully agree with you that their interpretation is invalid, but in the face of a Supreme Court that appears to be content to let the lower courts rule as they please, I don't see how that makes any real-world difference at all.

Tincon
10-24-2013, 11:30 AM
Your assumption is that SCOTUS won't take up another gun case. Several Justices have said publicly that they will, and the amount of litigation on the subject alone almost guarantees it. You have no reason to believe that they won't other than the fact that they have rejected a few cases, which is far from usual.

kcbrown
10-24-2013, 12:01 PM
Your assumption is that SCOTUS won't take up another gun case. Several Justices have said publicly that they will, and the amount of litigation on the subject alone almost guarantees it. You have no reason to believe that they won't other than the fact that they have rejected a few cases, which is far from usual.

Is it?

When is the last time they have been this consistent about rejecting cases of first impression involving fundamental Constitutional rights?

If these were ordinary, run-of-the-mill cases like the ones they've been granting cert to, your position here would be more sound. But these cases are extraordinary due to the nature of the subject matter.


How much of a split was there when the Court granted cert to Brown v Board of Education? How much of a split was there when it granted cert to Heller? No, sir, I see no consistent evidence and logic that supports your viewpoint, and plenty that supports mine.

Yours does, however, have the advantage of being the more hopeful viewpoint. :D

Tincon
10-24-2013, 12:15 PM
It's not necessarily more hopeful, but it is more accurate. There were cases denied cert before Brown. Even more illustrative is VA's miscegenation laws, challenged in 1955 (Naim v Naim, denied cert) and ultimatly not overturned until 1967, 12 years later, in Loving v Virgina.

speedrrracer
10-24-2013, 12:52 PM
Your assumption is that SCOTUS won't take up another gun case. Several Justices have said publicly that they will, and the amount of litigation on the subject alone almost guarantees it. You have no reason to believe that they won't other than the fact that they have rejected a few cases, which is far from usual.

I'm familiar with the Scalia quote on this, but several? That's good news to my ears. Any links to quotes from Justices other than Scalia?

Tincon
10-24-2013, 1:57 PM
I'm familiar with the Scalia quote on this, but several? That's good news to my ears. Any links to quotes from Justices other than Scalia?

http://www.mediaite.com/tv/sotomayor-comes-out-as-independent-teases-2nd-amendment-case-in-candid-colbert-interview/

Colbert then turned the conversation to the Second Amendment, asking if Sotomayor believes “we have the right to own any weapon that we want.”

Perhaps previewing the upcoming fight on gun control in the Supreme Court, she laughed and said, “You’ll find out soon enough, when a case comes up.”

kcbrown
10-24-2013, 2:04 PM
http://www.mediaite.com/tv/sotomayor-comes-out-as-independent-teases-2nd-amendment-case-in-candid-colbert-interview/


Colbert then turned the conversation to the Second Amendment, asking if Sotomayor believes “we have the right to own any weapon that we want.”

Perhaps previewing the upcoming fight on gun control in the Supreme Court, she laughed and said, “You’ll find out soon enough, when a case comes up.”



A case came up. We didn't find out.

Nuff said.

kcbrown
10-24-2013, 2:05 PM
It's not necessarily more hopeful, but it is more accurate. There were cases denied cert before Brown. Even more illustrative is VA's miscegenation laws, challenged in 1955 (Naim v Naim, denied cert) and ultimatly not overturned until 1967, 12 years later, in Loving v Virgina.

Which cases were denied cert before Brown, that asked the same question that Brown did?

This is good, though. I'm still not convinced, but this softens my position slightly.

speedrrracer
10-24-2013, 2:23 PM
http://www.mediaite.com/tv/sotomayor-comes-out-as-independent-teases-2nd-amendment-case-in-candid-colbert-interview/

Colbert then turned the conversation to the Second Amendment, asking if Sotomayor believes “we have the right to own any weapon that we want.”

Perhaps previewing the upcoming fight on gun control in the Supreme Court, she laughed and said, “You’ll find out soon enough, when a case comes up.”




Now I'm sad again. :(

One dishonest anti-gun Justice != several, and she didn't say they'd take a case, she laughed while saying that we'd find out her stance, when a case comes up.

She was laughing because she knew they'd never grant cert to another 2A case again.

Tincon
10-24-2013, 4:29 PM
Which cases were denied cert before Brown, that asked the same question that Brown did?


Lincoln University v. Hackmann (1922) 295 Mo. 118 (upholding segregation)

Pearson v. Murray (1936) 169 Md. 478 (striking it down).

kcbrown
10-24-2013, 4:31 PM
Lincoln University v. Hackmann (1922) 295 Mo. 118 (upholding segregation)

Pearson v. Murray (1936) 169 Md. 478 (striking it down).

That doesn't exactly suggest the kind of demand for an answer from the Supreme Court on the issue that our issue has, does it?

This has actually hardened my position a little again, but it's still not quite as hard as it was when we started this conversation.

Tincon
10-24-2013, 4:34 PM
That doesn't exactly suggest the kind of demand for an answer from the Supreme Court on the issue that our issue has.

This has actually hardened my position a little again, but it's still not quite as hard as it was when we started this conversation.

I will say that after around 1930ish almost all the courts were actually striking these laws down. It's quite a different situation than we have. You can interpret that as you will (pessimistically I assume). Again I think the misogyny law cases provide a more comparable analog.

kcbrown
10-24-2013, 4:57 PM
I will say that after around 1930ish almost all the courts were actually striking these laws down. It's quite a different situation than we have. You can interpret that as you will (pessimistically I assume).


I'm not sure just how much one can infer from that, but:



If one interprets it as the Supreme Court agreeing with the bulk of the lower courts' interpretations (and, thus, there was no reason for it to issue a ruling for some time), then the Supreme Court of today is being consistent with that.
If one interprets it as the Supreme Court simply allowing the issue to "percolate" in the lower courts before issuing a ruling, then the current Supreme Court is being consistent with that as well.


I'm not sure if there are other ways that it could be interpreted to yield anything meaningful.

To determine which is the more likely case, we'd need to get a sense for how long the Supreme Court lets things go for issues where it overturns the majority of the lower courts. Do we have data on that?



Again I think the misogyny law cases provide a more comparable analog.Possibly.

Tincon
10-24-2013, 5:02 PM
To determine which is the more likely case, we'd need to get a sense for how long the Supreme Court lets things go for issues where it overturns the majority of the lower courts. Do we have data on that?


Well the Supreme Court isn't a static entity either. But my sense is, they would rather have any given issue thoroughly explored below before they weigh in. Less chance of missing something. But I really do think it is silly to think that they will just leave things as they are. The lower courts are applying wildly different standards. We will get some kind of test/scrutiny from SCOTUS.

SFgiants105
10-26-2013, 8:33 PM
Here is the case in a nutshell:
Although other courts have rejected this expansive reading of Heller as precluding a state from banning assault weapons, and he cites no case applying Heller's principles to invalidate a state's ban on semi-automatic assault weapons, Zondorak asserts that we should construe Heller to bar California from criminalizing his possession of a semi-automatic AK series rifle. We conclude the ban on specified semi-automatic assault weapons under the AWCA does not transgress the Second Amendment, and affirm Zondorak's conviction.

He used Heller as the foundation for his case. This has already failed in other cases where they cited Heller to argue that state AWBs are unconstitutional. That is why he lost. The idea, it seems, is to have one of these many cases finally go well in ban state and use it as a precedent for a federal case. This ruling doesn't really create any precedent; it uses precedent from other identical cases to make its ruling.

SanDiegoMan
10-26-2013, 9:04 PM
http://www.atf.gov/firearms/guides/importation-verification/firearms-verification-nfa-machinegun.html

ATF defines machine guns as fully auto.

jamesob
11-04-2013, 11:53 AM
If a "semi auto AK is the same as a machine gun" then, it can not fit the definition of a CA AW because, it would be "full auto" and not "semi auto".

If AK type weapons are "unusual", that's news to me. They are one of the most "usual" guns to see at every gun show in CA.

Yea an ak47 is the most recognized rifle in the world, its not like an ak is unusual like a stg44

tonelar
11-10-2013, 4:46 PM
Wasn't the defendant in this case already a felon (barred from owning any firearms already)?