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View Full Version : CA Appeals Ct. Confirms AB962 Void; Applies Heightened Vagueness Review to Gun Laws


CMonfort
11-06-2013, 4:57 PM
The opinion was issued this afternoon. A formal release from NRA and our office will follow tomorrow.

UPDATE: 11/7/13

California Court of Appeals Confirms Ruling
Striking Down Ammunition Sales Restrictions

On November 6, 2013, the California Court of Appeals for the 5th District affirmed the lower court’s issuance of a permanent injunction in the NRA/CRPA backed legal challenge to Assembly Bill (AB) 962, Parker v. California. AB 962 would have banned mail order ammunition sales and required all purchases of so-called "handgun ammunition" to be registered. The court’s 41 page published opinion (http://michellawyers.com/wp-content/uploads/2010/11/Parker-v.-California_Opinion-Affirmed-In-Full.pdf) confirms that AB 962 is unconstitutionally vague and cannot be enforced.

The appellate decision comes approximately two years after the trial court issued a dramatic ruling giving gun owners a win just days before the law was set to take effect in 2010. The appellate court’s decision confirms that mail order ammunition sales to California can continue and ammunition sales need not be registered under current law.

The lawsuit, litigated by the NRA’s California counsel at Michel and Associates, P.C. (http://michellawyers.com/), was prompted in part by the many objections and questions raised by confused police, ammunition purchasers, and sellers about what ammunition would have been covered by AB 962. In a move that reflects growing law enforcement opposition to ineffective gun control laws, former Tehama County Sheriff Clay Parker was the lead plaintiff in the lawsuit. Other plaintiffs included the CRPA Foundation, Herb Bauer Sporting Goods, ammunition shipper Able’s Ammo, collectible ammunition shipper RTG Sporting collectibles and individual Steven Stonecipher.

In addition to these plaintiffs, Mendocino Sheriff Tom Allman, along with ammunition shippers Midway USA, Natchez Shooters Supplies and Cheaper Than Dirt also submitted declarations in support of the lawsuit. Amicus briefs were submitted to the Court of Appeals by the Law Enforcement Alliance of America, Gun Owners of California, and FFLGuard.

The Court of Appeals agreed with plaintiffs’ claims that AB 962 is unconstitutionally vague because it fails to provide sufficient notice of what ammunition is "principally for use in a handgun," and thus considered "handgun ammunition" under the law. The court explained that it would be practically impossible for consumers, retailers, and law enforcement to determine whether any of the thousands of different types of ammunition cartridges that can be used in handguns are actually used more often in a handgun. The proportional usage of any given cartridge is impossible to determine, and it changes with market demands.

The legislature itself was well aware of the vagueness problem with AB 962 and tried, but failed, to redefine the law. Rather than provide a clear list of the ammunition that would be prohibited, however, the legislature used the amendments as an attempt to expand the law to apply to even more types of ammunition, and also tried to expand the law in other ways.

The opinion also confirmed the applicable standard of review that should be applied in constitutional vagueness challenges, a larger legal issue that has been unsettled by the courts for years. The Court expressly confirmed that a law need not be vague in every conceivable application to be found unconstitutionally vague on its face, particularly when the law regulates constitutionally-protected activity, in this case the transfer of ammunition. In that respect the opinion brings some much needed clarity to this general area of the law.

Despite this common sense win over ill-conceived and counter-productive laws, additional legislation on this and related subjects will no doubt be proposed in the future. Those who believe in the right to keep and bear arms must stay informed and make their voices heard in Sacramento. To help, sign up for legislative alerts at www.nraila.com (http://www.nraila.com)and www.calnra.com (http://www.calnra.com) and respond when called upon. To assist in the fight against these persistent attacks on gun owners’ rights in California, please also donate to the NRA Legal Action Project (https://www.nrailadonate.org/forms/default.asp?campaignid=2013LegalAction) today.

Second Amendment supporters should also be careful about supporting well intentioned, but unfortunately counterproductive litigation brought by individuals and groups without access to the necessary funding, relationships, firearm experts, and experienced lawyers on the NRA's national legal team. The NRA's team of highly regarded civil rights attorneys and scholars has the resources, skill, and expertise to maximize the potential for victory. For a summary of the many actions the NRA legal team has taken or is currently taking on behalf of California gun owners, click here (http://www.calgunlaws.com/wp-content/uploads/2013/06/NRA-CA-Accomplishments2.pdf).

BumBum
11-06-2013, 5:36 PM
Nice job!

Maltese Falcon
11-06-2013, 5:42 PM
Kudos to your firm!

....and thank you.

.

FABIO GETS GOOSED!!!
11-06-2013, 5:47 PM
Brings back memories of the bombshell, rock star argument (http://www.calguns.net/calgunforum/showpost.php?p=5245676&postcount=1) made by the CGF attorney that AB 962 did not actually prohibit internet ammuntion sales. How did "face-to-face sales are not required" fare in the court of appeals?

:smilielol5:

And what do you know? The court of appeals cited the same information collecting and recording provisions that I did (http://www.calguns.net/calgunforum/showpost.php?p=5261307&postcount=235) when arguing that the bombshell argument was a dud because those things could only take place at the physical premises of the vendor.

Anyway, great job...looking forward to digesting the opinion but looks really good at first glance.

YoungKee
11-06-2013, 5:56 PM
Will have to read the whole thing later, but a couple of quick thoughts. First, good job. Second, the opening section in the dissent is scary as the PJ acknowledges the law is vague, but believes that the problem can be overcome by proper enforcement and the Court reading a requirement into the statute that does not actually exist in the text. In other words, "trust us, we're from the government" trumps any Constitutional concerns. I could be wrong on this as I have admittedly only briefly skimmed it, but holy crap that is a scary position for an appellate court justice to take.

IVC
11-06-2013, 5:58 PM
When you get a chance please post a quick summary, especially with respect to the impact on future legislation.

The initial challenge of AB 962 was about it being unconstitutionally vague with respect to "handgun ammunition" (vs. rifle and any other ammunition), so if this was the sole argument in the end it appears that we are still susceptible to attacks that ban, e.g., *all* Internet ammunition sales.

Maltese Falcon
11-06-2013, 6:02 PM
8 or so pages was over $40? :confused:

Maybe I am reading this wrong.

.

curtisfong
11-06-2013, 6:06 PM
Second, the opening section in the dissent is scary as the PJ acknowledges the law is vague, but believes that the problem can be overcome by proper enforcement and the Court reading a requirement into the statute that does not actually exist in the text. In other words, "trust us, we're from the government" trumps any Constitutional concerns. I could be wrong on this as I have admittedly only briefly skimmed it, but holy crap that is a scary position for an appellate court justice to take.

Agreed. In fact, the entire dissent is chilling...

Rumline
11-06-2013, 6:07 PM
Great news!

Reading the opinion, this "Salerno standard" sure jumps out as being a real POS.

mag360
11-06-2013, 6:45 PM
the dissent is nothing more than hand wringing. the judge sounds exactly like the legislators that wanted the bill. a whole lot of "you guys ought to know what handgun cartridges are, you are gun owners after all and even have a book called 'handgun cartridges of the world' so why don't you just use that as your standard"

RP1911
11-06-2013, 7:10 PM
Some gems:


“Second, a statute must provide sufficiently definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement.” (Id. at p. 390.)

"Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third… [u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.”
(Grayned, supra, 408 U.S. at pp. 108-109, footnotes and internal quotation marks omitted.)


"Because the challenged provisions fail to provide meaningful guidelines or discernable standards, there is a significant risk of arbitrary and discriminatory application by law enforcement officials. The lack of statutory guidance effectively confers discretion upon individual police officers to interpret the law themselves, thus allowing it to be enforced selectively or haphazardly. As such, the statutes do not satisfy the due process requirements under the second prong of the void-for-vagueness doctrine."

speedrrracer
11-06-2013, 7:20 PM
Some gems:


“Second, a statute must provide sufficiently definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement.” (Id. at p. 390.)

"Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third… [u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.”
(Grayned, supra, 408 U.S. at pp. 108-109, footnotes and internal quotation marks omitted.)


"Because the challenged provisions fail to provide meaningful guidelines or discernable standards, there is a significant risk of arbitrary and discriminatory application by law enforcement officials. The lack of statutory guidance effectively confers discretion upon individual police officers to interpret the law themselves, thus allowing it to be enforced selectively or haphazardly. As such, the statutes do not satisfy the due process requirements under the second prong of the void-for-vagueness doctrine."

Anyone else read this and start thinking about may-issue?

OleCuss
11-06-2013, 7:29 PM
My congratulations on the win! The lawyers at M&A should be proud of their work.

The downside, of course, is that the legislature may very well view this opinion as the answer to JB's veto statement and try again this next legislative session.

I have faith in the fascisti.

hermosabeach
11-06-2013, 7:38 PM
"Modern rifles and handguns fire ammunition that consists of three components: a
metal casing that holds a bullet, a propellant or powder, and a primer to ignite the powder"

So a cartridge is three parts????
Case
Primer
Powder...

What is that thing that keeps the powder from falling out???????


oh wait

the 4th part

Bullet

CMonfort
11-06-2013, 7:42 PM
Thank you.

If subsequent legislation is passed, it can and will be challenged on other grounds. Also, if the state appeals to the CA Supreme Court, and the case is still ongoing, that will continue to serve as a basis for defeat/veto.

In any event, the decision provides much needed clarity to the vagueness doctrine, and it we now have an appellate opinion confirming the level of clarity required in laws that regulate, or abut upon, the Second Amendment.

My congratulations on the win! The lawyers at M&A should be proud of their work.

The downside, of course, is that the legislature may very well view this opinion as the answer to JB's veto statement and try again this next legislative session.

I have faith in the fascisti.

CaliforniaLiberal
11-06-2013, 8:26 PM
The opinion was issued this afternoon. A formal release from NRA and our office will follow tomorrow.

Here is the link to the opinion:

http://michellawyers.com/wp-content/uploads/2010/11/Parker-v.-California_Opinion-Affirmed-In-Full.pdf (http://michellawyers.com/wp-content/uploads/2010/11/Parker-v.-California_Opinion-Affirmed-In-Full.pdf)

……….Anyway, great job...looking forward to digesting the opinion but looks really good at first glance.


OMFG!! Wow!! Completely Awesome!! Hooray for all of us!

And Fabio GG even offers praise! I think that small earthquake was hell freezing over.

We are all indeed Brothers of the Gun, one in spirit and purpose no matter how we may argue and spat.

I've really been thirsting for a judicial victory, seems like a dry spell there for a while, in California at least.

RP1911
11-06-2013, 8:31 PM
Anyone else read this and start thinking about may-issue?

Yes. That was my first thought and that's why I posted it. I think it has a good potential. But I will leave it up to the legal eagles to figure out.

Glad I am not the only one who is thinking attacking may issue with the gems.

Fjold
11-06-2013, 8:34 PM
And Fabio GG even offers praise! I think that small earthquake was hell freezing over.


And everyone in LA thought that the fireball in the sky was a meteor, fools!

SC_SD
11-06-2013, 9:04 PM
GREAT JOB GUYS!!

Thank you for the post Clint, as well as the tremendous efforts of you and your partners.

fizux
11-06-2013, 9:48 PM
Congrats! Good read (on the majority opinion side, at least).

$40 up on appeal? Really? That beats my personal motion-to-tax-pettiness record. Then again, it's not like they are wasting their own money.

Michael Ehline
11-06-2013, 9:53 PM
Outstanding victory. Semper Fi.

CMonfort
11-06-2013, 10:10 PM
And Fabio GG even offers praise! I think that small earthquake was hell freezing over.


From what I remember, FGG had always said that he thought the vagueness challenge to this law was a good one. FGG can correct me if I'm wrong.

ddestruel
11-06-2013, 10:37 PM
Thank you.

If subsequent legislation is passed, it can and will be challenged on other grounds. Also, if the state appeals to the CA Supreme Court, and the case is still ongoing, that will continue to serve as a basis for defeat/veto.

In any event, the decision provides much needed clarity to the vagueness doctrine, and it we now have an appellate opinion confirming the level of clarity required in laws that regulate, or abut upon, the Second Amendment.


"Respondents have also highlighted the risk of arbitrary and discriminatory application of the statutes by law enforcement. The level of discretion conferred upon individual officers to decide what does or does not constitute “handgun ammunition” on a case-by-case basis conflicts with basic due process principles.”


Yes i was intrigued about several potential possibilities to challenging more effectively the SHR, AWB & 1968 OCB. But ill leave that path and development to the experts whom seem to be finding their way to clarifying the mine field.

Thank you for a fight worth fighting being fought from the angle that many of us have wanted. i look forward to the commentary and cliff notes from the better educated minds but from reading it there is some guidance for other challenges

taperxz
11-06-2013, 11:24 PM
OMFG!! Wow!! Completely Awesome!! Hooray for all of us!

And Fabio GG even offers praise! I think that small earthquake was hell freezing over.

We are all indeed Brothers of the Gun, one in spirit and purpose no matter how we may argue and spat.

I've really been thirsting for a judicial victory, seems like a dry spell there for a while, in California at least.

FGG like some here are simply misunderstood. FGG has the knowledge and is willIng to share and stand by his opinion.

FGG is NOT here to be a law professor for the non lawyers in this forum though.

At least this is my take on him/her.

FGG is also willing to call out cough cough BS, NO! I mean bad ideas when someone posts it here.

On the other hand, I think many of us are just easy pickings for him to use the famous :laugh:

I personally have learned a lot, but mostly by willing to read between the lines and understanding his hints to knowledge. Which means I had to work for it and not pout about others not telling me.

CaliforniaLiberal
11-07-2013, 12:40 AM
FGG like some here are simply misunderstood. FGG has the knowledge and is willIng to share and stand by his opinion.

FGG is NOT here to be a law professor for the non lawyers in this forum though.

At least this is my take on him/her.

FGG is also willing to call out cough cough BS, NO! I mean bad ideas when someone posts it here.

On the other hand, I think many of us are just easy pickings for him to use the famous :laugh:

I personally have learned a lot, but mostly by willing to read between the lines and understanding his hints to knowledge. Which means I had to work for it and not pout about others not telling me.


I have been working hard to despise FGG less. I have heard your and others endorsement of his knowledge and opinions regarding legal cases. When I first started noticing his posts it seemed like it was all about trying to tear down CalGuns and the cause for the 2nd Amendment. But I have seen glimmers here and there that he might share our goals.

It's the poorly executed Socratic questioning, the constant hint, hint, lol, lol that gets pretty damn annoying after dozens of repetitions. The endless referrals to previous statements without links so you can go spend hours looking stuff up. The Superior tone, the Disdain for those lesser than, the unwillingness to explain.

Then I start to wonder, perhaps he has no social abilities at all, perhaps a tad autistic, like he has no idea how profoundly annoying he can be. Like he truly expects that we will admire his wit and enjoy his :rofl:

So anyway, I don't address him at all anymore, try to listen and glean crumbs of understanding. Quietly notice others being annoyed by him.

Probably not the best way to learn how the legal system works.

Baja Daze
11-07-2013, 1:02 AM
So what are the odds that dear kamala is going to appeal this decision to the Kaliforniastan Supreme Court?

fizux
11-07-2013, 4:28 AM
It's the poorly executed Socratic questioning, the constant hint, hint, lol, lol that gets pretty damn annoying after dozens of repetitions. The endless referrals to previous statements without links so you can go spend hours looking stuff up. The Superior tone, the Disdain for those lesser than, the unwillingness to explain.
Sounds like law school.
Probably not the best way to learn how the legal system works.
It's the way everybody else learned, except without the student loan debt.

hardlyworking
11-07-2013, 6:46 AM
Sounds like law school.

It's the way everybody else learned, except without the student loan debt.

This is kind of interesting when put in that light. I'm a scientist. In my line of work there IS an answer. We may not know the answer, we may need to experiment to find the answer, but there is one. Occasionally there is more than one.

In "law" though, there appear to not be answers. Which is why judgments are called "opinions" rather than "answers". Everything is up for grabs so long as you 1) argue your case better than the other guy, 2) are lucky enough to have a judge swayed by your arguments.

I think being a conlaw specialist would require a rare kind of competitive spirit that I just don't have.

flyer898
11-07-2013, 6:59 AM
I know the DAG who wrote the People's brief and I will ask him. It strikes me as a case that would be ripe for review in order to settle he standard in California.

I was particularly disappointed by the dissent accepting the proposition this law would have reduced crime and improved public safety, without any evidence of the truth of that proposition.

FABIO GETS GOOSED!!!
11-07-2013, 10:06 AM
From what I remember, FGG had always said that he thought the vagueness challenge to this law was a good one. FGG can correct me if I'm wrong.

Always. And the litigation appears to have achieved other big picture objectives described by Chuck Michel on an NRA internet interview I remember hearing a few years back. And nobody has to beg for depublication. :laugh:

CaliforniaLiberal
11-07-2013, 10:18 AM
Always. And the litigation appears to have achieved other big picture objectives described by Chuck Michel on an NRA internet interview I remember hearing a few years back.


And, Pray Tell, what big picture objectives might those be?

Ya know, we really want to know this stuff and it would be most unkind of you not to share with all of us.

Please, please, please if you could find it in you to give up all the 'Riddle of the Sphinx' style of posting and just say straight out what it is you have to say it would make these threads ever so much more interesting.

You and your knowledge and understanding could be such a boon to us all.

Rumline
11-07-2013, 10:19 AM
"Modern rifles and handguns fire ammunition that consists of three components: a
metal casing that holds a bullet, a propellant or powder, and a primer to ignite the powder"

So a cartridge is three parts????
Case
Primer
Powder...

What is that thing that keeps the powder from falling out???????


oh wait

the 4th part

Bullet
Yeah that tripped me up as well. I think someone added the "three components:" part after the fact because the sentence makes perfect sense without it:

"Modern rifles and handguns fire ammunition that consists of a metal casing that holds a bullet, a propellant or powder, and a primer to ignite the powder"

This way it says "the casing holds (bullet, powder, primer)." By adding in "three components:" the rest of the sentence's punctuation then implies that either the metal casing and bullet are one component or that the bullet was left out of the list of components entirely.

FABIO GETS GOOSED!!!
11-07-2013, 10:22 AM
You could learn something from taperxz. :laugh:

Calzona
11-07-2013, 10:41 AM
Well, it is official. Judge Cornell is off his rocker.

This is a great win! I can see it having a lasting effect on a great number of cases that attempt to restrict our rights here in CA, not just firearm rights.

Tincon
11-07-2013, 10:56 AM
Sounds like law school.


Maybe some law schools. When I took con law with Erwin Chemerinsky, I received straight forward (and surprisingly honest) answers to my questions. I also didn't have to look anything up, since he has memorized the entire con law book (which he wrote) and can quote page and verse from it verbatim. Same for every important con law case. It's like having a (really nice) living computer teach.:D Oh, and no Socratic dialog at all! :cool: So maybe that's why I have no patience for that crap.

taperxz
11-07-2013, 11:06 AM
Maybe some law schools. When I took con law with Erwin Chemerinsky, I received straight forward (and surprisingly honest) answers to my questions. I also didn't have to look anything up, since he has memorized the entire con law book (which he wrote) and can quote page and verse from it verbatim. Same for every important con law case. It's like having a (really nice) living computer teach.:D Oh, and no Socratic dialog at all! :cool: So maybe that's why I have no patience for that crap.

School is not the real world. Especially when your knowledge is your only tool to financial success.

In my world I could tell you ever step you ever wanted to know to complete a task knowing that you still would fail to complete that task with professional results.

All a lawyer has is their mind.

Don't be the lawyer who goes to the bar and tells everyone his trade secrets. It's not profitable. ;)

SC_SD
11-07-2013, 11:07 AM
FGG like some here are simply misunderstood. FGG has the knowledge and is willIng to share and stand by his opinion.

FGG is NOT here to be a law professor for the non lawyers in this forum though.

At least this is my take on him/her.

FGG is also willing to call out cough cough BS, NO! I mean bad ideas when someone posts it here.

On the other hand, I think many of us are just easy pickings for him to use the famous :laugh:

I personally have learned a lot, but mostly by willing to read between the lines and understanding his hints to knowledge. Which means I had to work for it and not pout about others not telling me.

I second this. FGG has taught me an enormous amount about legalese/nuance/shades of gray side of things and I appreciate that he (she?) takes the time to make me think. I have thanked him (her?) privately over PM for his (her) insight and am happy to do so publicly as well.

"Shall NOT BE INFRINGED!!!!11!!" types don't make you think (at least as often). Even if that is the view you hold, it is empowering to understand other sides and potential considerations people may have in a [U]legal argument.

SC_SD
11-07-2013, 11:09 AM
^plus, I, for one, enjoy the detective work. I don't need everything spoonfed to me think critically about how others may perceive the rights we all hold so dear.

Tincon
11-07-2013, 11:10 AM
Hey, where is kcbrown in this thread to tell that winning in the courts is impossible because they do whatever they want and they are all against us? ;)

CAL.BAR
11-07-2013, 11:20 AM
When you get a chance please post a quick summary, especially with respect to the impact on future legislation.

The initial challenge of AB 962 was about it being unconstitutionally vague with respect to "handgun ammunition" (vs. rifle and any other ammunition), so if this was the sole argument in the end it appears that we are still susceptible to attacks that ban, e.g., *all* Internet ammunition sales.

Right. This case was irrelevant almost as soon as it was filed since the legislature was already working on the (now defeated) "all ammunition" internet sales.

But the case is important as it keeps the State from trying to "pick off" certain "scary" types of ammunition first and then starting down the slope. They will have more trouble banning "all" ammunition sales online than say just "handgun" ammo or "assault weapon" ammo.

curtisfong
11-07-2013, 11:24 AM
Hey, where is kcbrown in this thread to tell that winning in the courts is impossible because they do whatever they want and they are all against us? ;)

I still think this is an outlier decision (although I am pleased, obviously) that tells me what to hope for in other cases.. but the dissent tells me what to expect...

chainsaw
11-07-2013, 11:48 AM
Hey, where is kcbrown in this thread to tell that winning in the courts is impossible because they do whatever they want and they are all against us? ;)

I'm sure he is posting this in some other thread, as we speak.

Consider his position (and that of his fellow travelers). He has convinced himself that the 2A and civil rights in general mean what he wishes them to mean. He is faced with the reality that courts keep rendering decisions which are based on a different understanding. He now has to find a way to resolve the discrepancy. Most people would now come to the conclusion that their individual understanding must have been wrong, since the courts are ultimately the arbiters of what the laws (including the constitution) really mean. But he is not willing to come to that conclusion, since it disagrees with his wishes. So instead he comes up with a conspiracy theory, which states that all (or at least most) judges are against us, hate guns, and will do whatever is in their "unfettered" power to rule against us. He than uses that mental model to predict the outcome of court cases.

One problem with that mental model is that it actually works remarkably well. If you look at most cases filed by pro-gun groups in the recent past, you find that they all wanted to get something that he wishes for, and that they failed in court (we've all discussed the marvelous track record of the CGF's suits, namely 13 failures in a row). Unfortunately, that reinforces his worldview.

The problem with this conspiracy theory worldview is that it has no predictive power. It will always predict that court cases will fail. It's like a watch that always says that is is exactly Miller time. While that is a very pleasant watch to have (because it will make me feel like going to have a beer, which I enjoy), it unfortunately conveys no information. And yet, once a day, that watch is even correct: around 5:00 PM, it actually ***is*** Miller time, and my marvelous watch will make me happy (as a quaff a wet one). But unlike kcbrown's predictions of gloom (which are actually mostly correct, but not because he understand's the world), this watch is actually mostly wrong: Out of 24 hours, the Miller-time watch is wrong 23 times, right one time. In contrast, kcbrown happens to be right most of the time, but not always.

The real problem is that this conspiracy worldview is not useful for planning what court cases to file, which arguments to use in them, and whether to push gun rights using legislation, public relations, or litigation. His worldview simply contains no information.

Instead, we should use a mental model that tries to understand the world, and use that for prognosticating. That should probably begin with understanding what the law really means. In the case of the 2A, that is surprisingly difficult, because we have so little to go on, just a handful of cases since Heller completely changed the landscape. Reading tea leaves (like tossing dicta at each other in the style of a ping-pong game) is at best moderately useful.

But we (as a community, both of pro-gun and anti-gun activists) need to stop believing our bellies, and we need to stop confusing our wishes for the law of the land. Reality sometimes hurts, but in the long run, the alternatives of living in a dream world is worse.

CMonfort
11-07-2013, 12:00 PM
This case was irrelevant almost as soon as it was filed since the legislature was already working on the (now defeated) "all ammunition" internet sales.

Hopefully I can provide some clarity here. That statement actually isn't accurate.

1) The lawsuit struck down AB 962. That was not a given.
2) The lawsuit was the very basis for the defeats of the legislation you referred to.
3) The opinion provides some much needed clarity to the vagueness doctrine generally.
4) The opinion confirms that a facial vagueness challenger need not establish that a law is vague in every application to succeed where the RKBA is implicated. This is the first opinion to confirm this.

A formal release will be issued shortly that provides this information, but I thought I would go ahead and clarify for you and other CGN readers.

SC_SD
11-07-2013, 12:10 PM
It's like a watch that always says that is is exactly Miller time. While that is a very pleasant watch to have (because it will make me feel like going to have a beer, which I enjoy), it unfortunately conveys no information. And yet, once a day, that watch is even correct: around 5:00 PM, it actually ***is*** Miller time, and my marvelous watch will make me happy (as a quaff a wet one). But unlike kcbrown's predictions of gloom (which are actually mostly correct, but not because he understand's the world), this watch is actually mostly wrong: Out of 24 hours, the Miller-time watch is wrong 23 times, right one time.

What a legendary analogy. Compared to the staid "a broken clock ...", your version is much more colorful. Hell, that's basically an allegory. Bravo.

jrr
11-07-2013, 12:15 PM
Well done! By no means was this a sure thing, and convincing the CA Court of Appeals to adopt a heightened standard for vagueness is no mean feat!

So.... what I'm looking forward to being reviewed under this standard is this question: What is a flash-hider? :devil2:

CMonfort
11-07-2013, 2:35 PM
California Court of Appeals Confirms Ruling
Striking Down Ammunition Sales Restrictions

On November 6, 2013, the California Court of Appeals for the 5th District affirmed the lower court’s issuance of a permanent injunction in the NRA/CRPA backed legal challenge to Assembly Bill (AB) 962, Parker v. California. AB 962 would have banned mail order ammunition sales and required all purchases of so-called "handgun ammunition" to be registered. The court’s 41 page published opinion (http://michellawyers.com/wp-content/uploads/2010/11/Parker-v.-California_Opinion-Affirmed-In-Full.pdf) confirms that AB 962 is unconstitutionally vague and cannot be enforced.

The appellate decision comes approximately two years after the trial court issued a dramatic ruling giving gun owners a win just days before the law was set to take effect in 2010. The appellate court’s decision confirms that mail order ammunition sales to California can continue and ammunition sales need not be registered under current law.

The lawsuit, litigated by the NRA’s California counsel at Michel and Associates, P.C. (http://michellawyers.com/), was prompted in part by the many objections and questions raised by confused police, ammunition purchasers, and sellers about what ammunition would have been covered by AB 962. In a move that reflects growing law enforcement opposition to ineffective gun control laws, former Tehama County Sheriff Clay Parker was the lead plaintiff in the lawsuit. Other plaintiffs included the CRPA Foundation, Herb Bauer Sporting Goods, ammunition shipper Able’s Ammo, collectible ammunition shipper RTG Sporting collectibles and individual Steven Stonecipher.

In addition to these plaintiffs, Mendocino Sheriff Tom Allman, along with ammunition shippers Midway USA, Natchez Shooters Supplies and Cheaper Than Dirt also submitted declarations in support of the lawsuit. Amicus briefs were submitted to the Court of Appeals by the Law Enforcement Alliance of America, Gun Owners of California, and FFLGuard.

The Court of Appeals agreed with plaintiffs’ claims that AB 962 is unconstitutionally vague because it fails to provide sufficient notice of what ammunition is "principally for use in a handgun," and thus considered "handgun ammunition" under the law. The court explained that it would be practically impossible for consumers, retailers, and law enforcement to determine whether any of the thousands of different types of ammunition cartridges that can be used in handguns are actually used more often in a handgun. The proportional usage of any given cartridge is impossible to determine, and it changes with market demands.

The legislature itself was well aware of the vagueness problem with AB 962 and tried, but failed, to redefine the law. Rather than provide a clear list of the ammunition that would be prohibited, however, the legislature used the amendments as an attempt to expand the law to apply to even more types of ammunition, and also tried to expand the law in other ways.

The opinion also confirmed the applicable standard of review that should be applied in constitutional vagueness challenges, a larger legal issue that has been unsettled by the courts for years. The Court expressly confirmed that a law need not be vague in every conceivable application to be found unconstitutionally vague on its face, particularly when the law regulates constitutionally-protected activity, in this case the transfer of ammunition. In that respect the opinion brings some much needed clarity to this general area of the law.

Despite this common sense win over ill-conceived and counter-productive laws, additional legislation on this and related subjects will no doubt be proposed in the future. Those who believe in the right to keep and bear arms must stay informed and make their voices heard in Sacramento. To help, sign up for legislative alerts at www.nraila.com (http://www.nraila.com)and www.calnra.com (http://www.calnra.com) and respond when called upon. To assist in the fight against these persistent attacks on gun owners’ rights in California, please also donate to the NRA Legal Action Project (https://www.nrailadonate.org/forms/default.asp?campaignid=2013LegalAction) today.

Second Amendment supporters should also be careful about supporting well intentioned, but unfortunately counterproductive litigation brought by individuals and groups without access to the necessary funding, relationships, firearm experts, and experienced lawyers on the NRA's national legal team. The NRA's team of highly regarded civil rights attorneys and scholars has the resources, skill, and expertise to maximize the potential for victory. For a summary of the many actions the NRA legal team has taken or is currently taking on behalf of California gun owners, click here (http://www.calgunlaws.com/wp-content/uploads/2013/06/NRA-CA-Accomplishments2.pdf).

stix213
11-07-2013, 3:21 PM
Your NRA dues at work!

Hey, where is kcbrown in this thread to tell that winning in the courts is impossible because they do whatever they want and they are all against us? ;)

Maybe that's him right there in your sig?

Or maybe he'd say that the judges in this case wanted us to win? :p

CCWFacts
11-07-2013, 3:28 PM
For those of us in areas like LA, where there are very few gun stores within reasonable driving distance, this is a HUGELY important victory. Given the lack of competition here, ammo prices would be ridiculous if I couldn't mail order it.

Congratulations to the NRA team! For anyone who says the NRA isn't doing anything, remember if they hadn't fought this particular court fight, you would be paying an extra $5 to $10 per box of ammo! I'm serious, given the lack of competition, and if there were no mail order to drive down prices, I'm sure ammo prices would double.

I don't remember the details on this law but I'm sure the definition of "pistol" ammo was as broad as possible and probably included many popular rifle calibers as well.

IVC
11-07-2013, 3:32 PM
I still think this is an outlier decision ...

This is two decisions if you count the PI. Unlikely to be explained away as (an) outlier(s).

hornswaggled
11-07-2013, 3:38 PM
Thanks be to NRA ILA and Michel for their continued efforts.

hornswaggled
11-07-2013, 3:41 PM
Hey, where is kcbrown in this thread to tell that winning in the courts is impossible because they do whatever they want and they are all against us? ;)

This is where he pivots to "they'll keep trying and get all of our guns and ammo eventually".

saudadeii
11-07-2013, 4:50 PM
BRAVO!!

jeremiah12
11-07-2013, 6:58 PM
School is not the real world. Especially when your knowledge is your only tool to financial success.

In my world I could tell you ever step you ever wanted to know to complete a task knowing that you still would fail to complete that task with professional results.

All a lawyer has is their mind.

Don't be the lawyer who goes to the bar and tells everyone his trade secrets. It's not profitable. ;)

When I worked as a research biologist I learned through trial and error not to give away my secrets because the one who publishes first gets the recognition and the grant money. Early in my career, I gave up a few discoveries before they were published and I paid for it.

I am no longer in that game, I am just a simple high school teacher now. I still have my skills and connections to access and find information about so many things, including science related topics. I used to share this information freely with others. Sometimes people would not believe me and so I would give them the web links or the print outs. Some still would not believe or would want to argue. Others were offended because they felt I was doing this to demonstrate how much smarter I was then they were. Yes, I have a higher than average intelligence, but those that know me the best know I am more comfortable hanging with friends at the local bar than the ivory tower types at the university (that is why I left that world.) So, I only do that sort of stuff for my personal edification or to help a close friend or family member.

I refuse to do any research or just hand any information over to anyone who just wants me to give it to them because they are too lazy to look it up for themselves. I used to get paid $100 an hour to do this. I do not even voluntarily give my work up to my school district. Anything I do at home is mine. If they want copies of the assignments I create, they have to buy them from me. I still do consulting work from time to time. So if my district wants me to work extra hours, they pay my consulting rate, not the adjunct pay which is half the regular teacher salary.

So, I really do not understand why FGG is not more free with his viewpoints but I can understand why he may not be. It can be annoying, but FGG always leaves me with something to occupy my brain for a few days and in real life, real problems are not solved with just a few seconds of superficial thoughts.

This ruling does open very many interesting possibilities to fight against laws that infringe on our 2A rights in CA. I believe it evens open the door to be used against the handgun roster.

G21Shooter
11-08-2013, 8:00 AM
Outstanding, great work!!!

Does this mean that future bills aimed at making it harder for CA gun owners to purchase ammo(more mail order ban talk, ammo permits, ect) will be more likely to fail?

IVC
11-08-2013, 8:38 AM
I refuse to do any research or just hand any information over to anyone who just wants me to give it to them because they are too lazy to look it up for themselves.

That's *within* the field.

Now imagine you have a problem with, say, your autoclave and you want to find out what's wrong with it, or you need to know some technical detail about its inner working in order to know whether it will affect your research. You go on an "autoclave forum" to find out, there is someone who makes it very clear he understands the inner workings, but instead of telling you what you would like to know, he dances around the issue more interested in "being right" once you figure it out than helping you.

There are few points: (1) you don't care about the piece of equipment per se so you're not in any competition with the equipment manufacturer or anyone in the field; (2) you don't want to know how to engineer the whole gadget, you're just using it and need to understand it at the higher level; (3) you're not lazy - going to the forum *is* research.

Remember, this is a *gun forum*, not a legal research portal.

PhillyGunner
11-08-2013, 9:50 AM
Congratulations and thank you all who took up this fight on our behalf.

I am NO law scholar... and while I try to read all the posts and stay up to speed, I only have a layman's understanding of the law.

That stipulated, I am very happy that there is what sounds like the beginnings of a 'requirement' to prevent vagueness, either deliberate or 'accidental', in the crafting of 2A law in California.

Getting it to impact the legislative process may be difficult, but it is a great argument for compelling vetos and injunctions after the fact. And, as we have all seen, when usurping Civil Rights you really only have two modalities: vagueness to conceal the real intent/effect of the law and overreach to 'get it all' which has already led to a veto here in CA.

So, for those of us with no law skills... who happen to reside in the City of Los Angeles... can we expect to start ordering Ammo online soon? About Two Weeks? :rolleyes:

hardlyworking
11-08-2013, 11:06 AM
So, for those of us with no law skills... who happen to reside in the City of Los Angeles... can we expect to start ordering Ammo online soon? About Two Weeks? :rolleyes:

Well played! And lest the FGG angst fade away I'll toss in a :laugh: for good measure

CAL.BAR
11-08-2013, 11:24 AM
Hopefully I can provide some clarity here. That statement actually isn't accurate.

1) The lawsuit struck down AB 962. That was not a given.
2) The lawsuit was the very basis for the defeats of the legislation you referred to.
3) The opinion provides some much needed clarity to the vagueness doctrine generally.
4) The opinion confirms that a facial vagueness challenger need not establish that a law is vague in every application to succeed where the RKBA is implicated. This is the first opinion to confirm this.

A formal release will be issued shortly that provides this information, but I thought I would go ahead and clarify for you and other CGN readers.

Chuck, the Legislature already passed a more sweeping version of the law before the court ruled on this one making the handgun vagueness distinction irrelevant. Win or lose the second bill would have supplanted the first in scope and effect. That means that portion was made irrelevant. I agree completely however, that other vagueness issues clarified in the holding are useful and the case in toto was not irrelevant, merely the vagueness challenge to the handgun ammo portion. And let's all breath a large sigh of relieve that we didn't have to fight this battle as to "all ammo" as called for in the recently defeated bill.

CMonfort
11-08-2013, 12:29 PM
Well, yes, obviously if the law had passed and become law it would have taken effect regardless of the outcome of this suit (in which case a different suit would likely be filed). But it didn't become law and the pending lawsuit was the very reason that bill, and previous versions, failed. And because those laws failed, the portion of the opinion permanently enjoining enforcement of the current statutes utilizing the "principally for use in a handgun" standard is not irrelevant.

Who knows what will happen next session. If the State seeks review by the CA Supreme Court, that can serve as the basis for another defeat/veto. If the State appeals, we then have the opportunity to have the CA Supreme Court (and then potentially the Supreme Court) clarify the vagueness doctrine.

If the state doesn't appeal, we have solid ruling from the CA Court of Appeals. It will no doubt be interesting to see what happens.

kcbrown
11-08-2013, 1:30 PM
Hey, where is kcbrown in this thread to tell that winning in the courts is impossible because they do whatever they want and they are all against us? ;)

Busy debating FGG in the Peña v Cid thread. And being swayed somewhat by his arguments, frankly.

Good stuff, that.


As for winning this, yes, I am mildly surprised, though not as much as you might think -- a preliminary injunction was granted, after all. This increases my general "chance of success" meter slightly.

While I think it's notable that this was not won on the basis of a 2nd Amendment argument, that does not diminish the fact that the majority on this panel saw fit to apply the vagueness test to a potentially uncomfortable subject. The dissent has been described as chilling, however, and it looks like I'm going to have to go read both the decision and the dissent.


If there's anything that FGG has taught me, it's that I have to read the entirety of the decision and the dissent, carefully, before stuffing my foot in my mouth...

kcbrown
11-08-2013, 1:57 PM
I'm sure he is posting this in some other thread, as we speak.

Consider his position (and that of his fellow travelers). He has convinced himself that the 2A and civil rights in general mean what he wishes them to mean. He is faced with the reality that courts keep rendering decisions which are based on a different understanding. He now has to find a way to resolve the discrepancy. Most people would now come to the conclusion that their individual understanding must have been wrong, since the courts are ultimately the arbiters of what the laws (including the constitution) really mean.


Oh, I'm fully aware of the actual power of the courts here. I'm also aware that their view of the right is very different than mine.



But he is not willing to come to that conclusion, since it disagrees with his wishes. So instead he comes up with a conspiracy theory, which states that all (or at least most) judges are against us, hate guns, and will do whatever is in their "unfettered" power to rule against us. He than uses that mental model to predict the outcome of court cases.
Tell me something: what is the substantive difference between the above, and the (correct) statement that the courts are the ultimate arbiters of what the laws, including the Constitution, really mean? Does not the latter imply that the courts can and do say that the law means whatever they want it to mean, i.e. base the meaning of each on their opinions and beliefs of same?



One problem with that mental model is that it actually works remarkably well. If you look at most cases filed by pro-gun groups in the recent past, you find that they all wanted to get something that he wishes for, and that they failed in court (we've all discussed the marvelous track record of the CGF's suits, namely 13 failures in a row). Unfortunately, that reinforces his worldview.

The problem with this conspiracy theory worldview is that it has no predictive power. It will always predict that court cases will fail. It's like a watch that always says that is is exactly Miller time. While that is a very pleasant watch to have (because it will make me feel like going to have a beer, which I enjoy), it unfortunately conveys no information.
This is true. And frankly, the adoption of a model which has no real predictive power is what I fear the most. It is why I attempt to be as evidence-driven and logic-driven as I can be.

If we were winning even a reasonable percentage of the cases we brought, my predictions would be very different, because that fact would force me to discard my model or, at least, revise it to eliminate whatever within it is yielding incorrect predictions.

The problem with what you're saying here is that you're confusing cause with effect, prediction with explanation. My claim about how judges will generally deal with 2A cases started off as a predictive model based on historical observation, but as a result of those predictions coming true (for the most part), has become an explanation.

That is the nature of the scientific method. You observe something about the world, formulate an hypothesis (a predictive model) on the basis of those observations, use it to make predictions, and then examine the results. If the results match the predictions, then your model becomes an explanation.



The real problem is that this conspiracy worldview is not useful for planning what court cases to file, which arguments to use in them, and whether to push gun rights using legislation, public relations, or litigation. His worldview simply contains no information.
Yes, that is very much an issue with it. It has limited applicability as regards that.

That does not mean it is incorrect, nor that it is not useful as a predictive model, only that the scope of its predictive capability is limited. But it hints at a means of achieving more precise predictions. See below.



Instead, we should use a mental model that tries to understand the world, and use that for prognosticating. That should probably begin with understanding what the law really means.
But this presumes that "what the law really means" is a fixed thing. But if, as you correctly observe, the law means what the courts say it means, then it is fluid, for the courts are constantly saying what it means on the basis of their beliefs about same, and that changes over time.

So we're left with the question of how to predict what the courts will say the law means. And since they decide such things on the basis of their beliefs, it follows that we have to predict it by somehow learning in advance what those beliefs are.



But we (as a community, both of pro-gun and anti-gun activists) need to stop believing our bellies, and we need to stop confusing our wishes for the law of the land. Reality sometimes hurts, but in the long run, the alternatives of living in a dream world is worse.I do my best to cleanly separate my desires from my expectations. Why else would I expect failure to achieve my desires here?

taperxz
11-08-2013, 4:59 PM
Busy debating FGG in the Peña v Cid thread. And being swayed somewhat by his arguments, frankly.

Good stuff, that.


As for winning this, yes, I am mildly surprised, though not as much as you might think -- a preliminary injunction was granted, after all. This increases my general "chance of success" meter slightly.

While I think it's notable that this was not won on the basis of a 2nd Amendment argument, that does not diminish the fact that the majority on this panel saw fit to apply the vagueness test to a potentially uncomfortable subject. The dissent has been described as chilling, however, and it looks like I'm going to have to go read both the decision and the dissent.


If there's anything that FGG has taught me, it's that I have to read the entirety of the decision and the dissent, carefully, before stuffing my foot in my mouth...

So, FGG is going to turn you into an optimist? God help us :p

kcbrown
11-08-2013, 5:12 PM
So, FGG is going to turn you into an optimist? God help us :p

LOL!!!!!

:rofl2: