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View Full Version : does the hicap ban violate 14th amendment?


outersquare
02-12-2008, 8:34 PM
IANAL
but it seems to me this "grandfathering" of possession, which is basically a property right, violates the equal protection clause.

AJAX22
02-12-2008, 8:39 PM
so does the grandfathering of registered MG's in CA, AW's, DD's (striker12 anyone?), the 1968 GCA, the 1934 NFA, the 1984 FOPA, and a number of other fun little tidbits.

Just because you are technically 'within your rights' doesn't mean you won't go to the 'pokey' for it.

bluestaterebel
02-12-2008, 8:52 PM
pokey?

hoffmang
02-12-2008, 8:54 PM
Pre Heller my answer would have been "maybe."

Post a pro-rights win in Heller, the answer is most likely but it's not a slam dunk case.

-Gene

jerryg1776
02-12-2008, 8:54 PM
pokey?

Thats the place with bars where they "pokey" you....

Wulf
02-12-2008, 8:55 PM
Of course if you are dead or dying, violating the mag law will be the least of your worries. And since there's no law broken by the person receiving the mags, passing them on to your survivors would seem to be legal in practice if not in fact.

Shane916
02-12-2008, 9:02 PM
California doesn't recognize the United States Constitution :) It is merely a suggestion :D

mymonkeyman
02-12-2008, 11:46 PM
IANAL
but it seems to me this "grandfathering" of possession, which is basically a property right, violates the equal protection clause.

Because large-capacity gun owners isn't a class defined by race or sex, it will receive only rational basis review. This is also informally called rubber-stamp review, and simply requires some non-arbitrary reason for the legislation (does not necessarily have to be the reason the legislature had in mine when passing the statute). One could be that they wanted to avoid an arguable due process violation for a taking without compensation and they wanted to save money for compensation (although that probably would get looked at funny because generally banning chattels is not a takings violation - which is why there is no grandfather clause for drug possession). Another might be to avoid hurting vested interests, to avoid the costs of the police accepting the banned goods (i.e. general administrability / efficiency reasons), etc. Basically, with something like this, a court isn't going to find an equal protection violation. Look at Kasler, something which had a bit more of a plausible argument wrt equal protection, but the antis won.

hoffmang
02-13-2008, 11:21 AM
Kasler was missing a fundamental right to arms. The equal protection claims one would make regarding large capacity magazines would be as against LEO's, FFLS and armored vehicle services and the core question presented would be why they get to exercise their fundamental rights to keep and bear arms in a way different than the rest of us.

On intermediate scrutiny, this might be a losing argument. Under strict scrutiny its a winner. Either way, I doubt rational basis will be the test of such a closely related issue to keeping and bearing when the core right is both fundamental and incorporated. Here in the 9th, I can see an attempt to use intermediate scrutiny, but I think the 14th amendment analogs are going to be hard to defend for the argument that intermediate scrutiny is acceptable.

-Gene

Pokey
02-13-2008, 12:46 PM
so does the grandfathering of registered MG's in CA, AW's, DD's (striker12 anyone?), the 1968 GCA, the 1934 NFA, the 1984 FOPA, and a number of other fun little tidbits.

Just because you are technically 'within your rights' doesn't mean you won't go to the 'pokey' for it.

Hey, lets just leave me outta this......:D

chris
02-13-2008, 12:57 PM
California doesn't recognize the United States Constitution :) It is merely a suggestion :D

your kidding right? they pay attention to it like they pay attention to how much money they spend:eek:

it's merely a guidline that gets in the way of total control and a disarmed state.

CCWFacts
02-13-2008, 1:05 PM
If everyone always had to have equal property rights, a whole lot of things would be beyond regulation. That guy who owns and has registered a 1970 Buick, why does he have the right to drive a car that pollutes ten times as much as my new Prius? Or someone who built a house: why does someone who built 50 years ago have a right to a house which I can't build today because the building codes have changed? There are many examples of this. It would be nearly impossible to regulate anything if they couldn't "grandfather" things.

I'm hoping that we'll fix the mag ban with some help from Heller.

mymonkeyman
02-13-2008, 1:52 PM
Kasler was missing a fundamental right to arms. The equal protection claims one would make regarding large capacity magazines would be as against LEO's, FFLS and armored vehicle services and the core question presented would be why they get to exercise their fundamental rights to keep and bear arms in a way different than the rest of us.

On intermediate scrutiny, this might be a losing argument. Under strict scrutiny its a winner. Either way, I doubt rational basis will be the test of such a closely related issue to keeping and bearing when the core right is both fundamental and incorporated. Here in the 9th, I can see an attempt to use intermediate scrutiny, but I think the 14th amendment analogs are going to be hard to defend for the argument that intermediate scrutiny is acceptable.

-Gene

Yes, post Heller, everything is different. However, it would not be likely phrased in the terms of an equal protection argument.

SKG19
02-13-2008, 1:56 PM
That guy who owns and has registered a 1970 Buick, why does he have the right to drive a car that pollutes ten times as much as my new Prius?

Not a good example...It's not unlawful for the dude with a Prius to purchase a 1970 Buick, Nor is it unlawful for the dude with the Buick to get a Prius. Since it's not against the law to own a car the pollutes '10 times' more than a Prius...it doesn't really matter.

yellowfin
02-13-2008, 2:28 PM
If everyone always had to have equal property rights, a whole lot of things would be beyond regulation. That guy who owns and has registered a 1970 Buick, why does he have the right to drive a car that pollutes ten times as much as my new Prius? Or someone who built a house: why does someone who built 50 years ago have a right to a house which I can't build today because the building codes have changed? There are many examples of this. It would be nearly impossible to regulate anything if they couldn't "grandfather" things.

And the problem with not being able to regulate is....?:confused:

CCWFacts
02-13-2008, 2:45 PM
And the problem with not being able to regulate is....?:confused:

I think there's too much regulation these days, but some level of regulation is a legitimate government activity. The federal government has the constitutional power of regulating interstate commerce, and states have their own regulatory powers.

Going back to firearms, if it were in my power I would sweep away the bulk of firearms regulations of recent decades, both state and federal. But no one has put me in charge of that, unfortunately.

hoffmang
02-13-2008, 2:49 PM
Yes, post Heller, everything is different. However, it would not be likely phrased in the terms of an equal protection argument.

Why wouldn't one phrase it as an equal protection case?

It would seem the cause of action would only be dependent on one's strategy in the 9th circuit - not what would be the "usual" cause of action. Equal protection claims regarding the exceptions to California weapons laws have been the few that have worked. See Silveira and its incorrect strike of the retired LEO exemption.

-Gene

stevepsd
02-13-2008, 5:40 PM
California doesn't recognize the United States Constitution :) It is merely a suggestion :D

Not entirely true.

CALIFORNIA CONSTITUTION
ARTICLE 3 STATE OF CALIFORNIA


SEC. 1. The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.


See http://www.leginfo.ca.gov/.const/.article_3


This seems to imply that the state recognizes the US Constitution.

FallingDown
02-13-2008, 8:24 PM
LOL - sounds to me, that the implication is California is pulling the old "what ya going to do about it" attitude, given the majority of the population is indifferent to or anti 2A.

I'd venture to say balkanization is already here, so will Redding be the next Kosovo? LOL

Pre Heller my answer would have been "maybe."

Post a pro-rights win in Heller, the answer is most likely but it's not a slam dunk case.

-Gene

Shane916
02-13-2008, 8:28 PM
your kidding right?

Indeed I am :)

Not entirely true.

CALIFORNIA CONSTITUTION
ARTICLE 3 STATE OF CALIFORNIA


SEC. 1. The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.


See http://www.leginfo.ca.gov/.const/.article_3


This seems to imply that the state recognizes the US Constitution.

Indeed I am kidding once again :D

Purely :sarcasm: :)

FallingDown
02-13-2008, 8:28 PM
California doesn't recognize the United States Constitution :) It is merely a suggestion :D

Elizabeth Swan "What about the code?"

Captain Barbossa "It's more like guidelines"

mblat
02-14-2008, 7:36 AM
Not entirely true.

CALIFORNIA CONSTITUTION
ARTICLE 3 STATE OF CALIFORNIA


SEC. 1. The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.


See http://www.leginfo.ca.gov/.const/.article_3


This seems to imply that the state recognizes the US Constitution.


Then what is with ".....right of people to keep and bear arms shall not be infringed"?

It is newspeak. State SAYS it recognizes COTUS, but in reality it couldn't care less.

dfletcher
02-14-2008, 9:17 AM
Then what is with ".....right of people to keep and bear arms shall not be infringed"?

It is newspeak. State SAYS it recognizes COTUS, but in reality it couldn't care less.

Well I agree those who run the state couldn't care less and "sanctuary cities" are an excellent example of that. But I think their painting with a broad brush answer regarding guns would be that we have thousands of licensed dealers to choose from and access to hundreds (maybe +1,000?) of models of guns including "military style" semi auto rifles. And most people who don't know any better would say that's fine. We of course can be specific and accurate and point out otherwise.

Jason762
02-14-2008, 9:39 AM
California doesn't recognize the United States Constitution :) It is merely a suggestion :D

Yeah, just like stoplights are merely suggestions to drivers!

xenophobe
02-14-2008, 10:44 AM
Pre Heller my answer would have been "maybe."

Post a pro-rights win in Heller, the answer is most likely but it's not a slam dunk case.

-Gene

The decision of the DC Appellate Court insinuates that it might, but was beyond the scope of the questions it was asked to answer. If Heller v. US is ruled in our favor it might be addressed more specifically, but overall, until it is incorporated, the answer would be no, because SCOTUS has never been specifically asked to answer this question directly.

Technically, if you look at the original draft of the 14th Amendment and the history behind it, remove all of the Civil Rights Act history which was combined into the document that became the 14th Amendment, then the answer would definitely be yes.

FreedomIsNotFree
02-14-2008, 11:18 AM
LOL - sounds to me, that the implication is California is pulling the old "what ya going to do about it" attitude, given the majority of the population is indifferent to or anti 2A.

I'd venture to say balkanization is already here, so will Redding be the next Kosovo? LOL

It may sound funny, but it isn't. The tactics that are being used to take Kosovo from Serbia may be used to take southern California from us. Unregulated immigration coupled with high birth rates...etc..etc. As we see the demographics change over the next 10 years or so, we will see folks calling for "autonomy".

I think Redding is safe, but San Diego may not be.