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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #41  
Old 11-20-2009, 11:51 PM
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Originally Posted by wash View Post
I do believe there should be prohibitions for certain felonies regardless of the circumstances of the case.

For example, bank robbery. I don't think it should matter if a person holds the place up with a gun or if the person just grabs a sack of nickels while the armored car driver isn't looking.

Every one knows that robbing a bank is illegal and anyone dumb enough to try it should suffer the consequences.

DV is a whole other ball of wax because misdemeanors trigger a prohibition and there is bias in the enforcement (how many females are charged with DV and how many males charged with DV were just defending themselves?).
I strongly disagree.

A person that robs a bank with a note is not the same as someone that uses a gun.

But the real issue I have is that the only reason someone should be deprived the right to keep and bear is if the person is more than likely a danger to themselves or others with a firearm.
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  #42  
Old 11-21-2009, 8:29 AM
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These are the current misdemeanors that hold a lifetime ban regardless..

Assault with a firearm (§§ 12021(a)(1), 12001.6(a).) ((SO YOU CAN ASSAULT SOMEONE WITH A KNIFE, BOW, OR ANYTHING ELSE IN THE WORLD AND GET YOUR RIGHT TO OWN AGAIN IN 10 YEARS, WHY THE DIFFERENCE... I MEAN YOUR NOT LIMITED TO USING A FORK AND SPOON TO EAT WITH THE REST OF YOUR LIFE?))

C Shooting at an inhabited or occupied dwelling house, building, vehicle, aircraft, misdemeanors or camper (§§ 246, 12021(a)(1),
12001.6(b).) ((KIND OF A STUPID THING TO TO ANYWAYS, BUT A LIFETIME?))

C Brandishing a firearm in presence of a peace officer (§§ 417(c), 12001.6(d), 12021(a)(1).) ((AGAIN STUPID THING TO DO, BUT WHEN YOU GET BACK YOUR VOTING RIGHTS, JURY DUTY RIGHTS... WHY NOT THE RIGHT TO ARM YOURSELF... YOU PAY TAXES TO SUPPORT YOUR COUNTY, STATE AND COUNTRY, SO WHY SHOULD YOU LOSE RIGHTS?))

C Two or more convictions of 417(a)(2) (§ 12021(a)(2).)
* A “misdemeanor crime of domestic violence” (§§ 18 U.S.C. 921(a)(33)(A), 18 U.S.C. 922(g)(9).) ((OKAY TO ME, IF YOU HAVE A HISORY OF DOING THINGS... THEN MAYBE IT WOULD BE TIME TO HAVE LIMITED RIGHTS))

But other than that, I agree if you can be trusted in society, then why take the right to arm against you? Again if you're a repeat offender, then thats where things scary and then you should have some limites removed, but again I too feel that if you're a criminal then you're going to be a criminal and if the state or feds remove your gun rights, you're going to get guns anyways... but if you make a mistake ONCE in your life then these limits are extreme. Again, these are the crime of doing a "wobbler" offense that is charged as a misdemeanor... and your right is removed FOREVER!
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  #43  
Old 11-21-2009, 9:25 AM
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Quote:
Originally Posted by wash View Post
I do believe there should be prohibitions for certain felonies regardless of the circumstances of the case.

For example, bank robbery. I don't think it should matter if a person holds the place up with a gun or if the person just grabs a sack of nickels while the armored car driver isn't looking.

Every one knows that robbing a bank is illegal and anyone dumb enough to try it should suffer the consequences.

DV is a whole other ball of wax because misdemeanors trigger a prohibition and there is bias in the enforcement (how many females are charged with DV and how many males charged with DV were just defending themselves?).
Grabbing the nickels while the armored car driver isn't looking probably is not a robbery which involves taking property by means of force or fear so much as it is a simple theft.

Society condemns robbery over simple theft because because it is more dangerous and scary.
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  #44  
Old 11-21-2009, 10:26 AM
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Originally Posted by hoffmang View Post
1. Hunting is one of the lawful purposes for which one has a right to keep and bear. Scalia said as much in Heller.

2. I think we see intermediate scrutiny here for two reasons. First, the reason that the misdemeanant wishes to keep arms is for hunting and not the core right of self defense. Second, he's in a violent category. He's not a felon, so it's not a presumptively lawful rule but it may hold up to intermediate scrutiny. However, this may mean that your crime of domestic violence has to be something more than pushing and shoving...

This is all good news.

-Gene
BANG! You nailed it right there, Gene. The Feds are required to provide a substantive nexus between the conduct that constituted the domestic violence conviction, and the deprivation of the individuals fundamental right to keep and bear arms.

This will ensure that the Feds (putative) important governmental interest (prevention of gun violence in domestic relations) is substantially related to the means by which it achieves the prevention of gun violence in domestic relations (depriving the person convicted under the statute from his fundamental 2nd amendment rights).

So, unless the statutorily prohibited conduct the individual was convicted of involved the use, or expressed or implied threat to use a firearm to consummate the conduct, no can do.

Of course, the Feds actually have no enumerated/implied/necessary and proper constitutionally established "Police Power" to even be regulating in this area in the first place, but that is a constitutional challenge that I personally hope comes sometime in the near future.
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  #45  
Old 11-21-2009, 10:51 AM
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In California, a simple battery costs one's 2A right for ten years. A battery is not even a crime of moral turpitude.

However, in a post-incorporation world, CA would justify this prohibition in the same manner the feds will on remand in this case.

They would say a person convicted of DV has shown a willingness to engage in unwarranted violence. This justifies the need for the state to deprive him of his right to a weapon.

I think the problem with the case was that the feds never attempted to justifiy the statute.

My own personal opinion is that only felons at common law should be deprived of 2A rights. Nowadays, govs call the most innocuous of offenses felonies, thereby undermining the 2A, to the point that some day it may be a felony to litter.
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  #46  
Old 11-21-2009, 11:20 AM
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Originally Posted by Theseus View Post
But the real issue I have is that the only reason someone should be deprived the right to keep and bear is if the person is more than likely a danger to themselves or others with a firearm.
I agree in principle, but CA laws make that subject to abuse by the state (as in this case, for example). If a LEO decides, all by himself, to take you in on a 5150 he is required to confiscate your firearms. They can keep them for 30 days, and longer if they petition the court. All of this on the word of a single LEO, no court involvement, no due process. Add the time it takes to get the release forms back from DOJ and you've lost RKBA for a significant amount of time.

If the LEO further claims that you are a danger to yourself or others, and the hospital intake person agrees, you now have a 5-year prohibition, even if they release you a few hours later. The hospital person is likely to 'play it safe' and go along with the LEO. No court involvement, no due process, although the law allows you to petition the court for relief of the prohibition. That takes time and money (pay a lawyer) and not everyone has the means to pay a lawyer.

The restraining order and protective order laws are subject to abuse by the state as well, as judges often grant those based on a claim from a single individual without requiring additional evidence or corroboration. Bang, there goes your RKBA for the duration of the order, plus the additional wait-for-DOJ-release time.
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  #47  
Old 11-22-2009, 12:15 AM
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Quote:
Originally Posted by hoffmang View Post
1. Hunting is one of the lawful purposes for which one has a right to keep and bear. Scalia said as much in Heller.

2. I think we see intermediate scrutiny here for two reasons. First, the reason that the misdemeanant wishes to keep arms is for hunting and not the core right of self defense. Second, he's in a violent category. He's not a felon, so it's not a presumptively lawful rule but it may hold up to intermediate scrutiny. However, this may mean that your crime of domestic violence has to be something more than pushing and shoving...

This is all good news.

-Gene
Your comment about a mcdv may have to be more than pushing and shoving is interesting. In this case in the ninth circuit http://www.ncdsv.org/images/Effect%2...osecutions.pdf the ruling was that it had to ba willful act and court records not just charges had to reflect that fact.

In the Belleses case in the 9th http://www.altlaw.org/v1/cases/1127004 the court ruled that since the federal lautenberg amendment uses force and threatened use of a deadly weapon in the same sentence, pushing and shoving or grabbing is not enough force to trigger lautenberg. They even use an example of pres Nixon jabing his finger into the russian president's chest. That is more offensive than what many people have been arrested for and been banned by lautenberg.

The court came to these rulings since the Hawaiian and Wyoming statutes are expansive and also include minor contact and reckless contact. In the Wyoming case I linked above the record stated the husband grabbed his wife by the throat and pushed her up against a car and that was not enough force.

This brings an interesting problem for a californian I know. He plead to 242 battery for even less contact with no pushing because his attorney, who was a former ADA told him any offensive or unwanted touching was battery in CA.

He was dating the woman but never cohabitated and no children together so he does not meet the lautenberg definition of DV. PFEC came back ineligable and cal doj says it was because fed lautenberg (it's been over 10
years for CA law). All the case law and govt prosecution guides we can find state that they have to have cohabitated to meet the similarly situated clause
of lautenberg. They always had separate residence.

He even filed a motion to vacate his plea due to his attorney telling him this would not harm his ARMY reserve carrer, he still has signed letters from his attorney dated after she entered his plea that he would loose his state rights. He never appeared in court or saw the judge and the docket supports this. His attorney kept telling him it was procedural nonsense and he
did not have to miss work to appear. He was 19 and gullable.

When the motion to vacate the plea,which is common for non citizens to have granted to stop a deportation, was denied by the judge he stated on the record that the defendant and his attorney were correct but it was just too much of an impact on past pleas involving the loss of second amendment rights for him to rule in his favor. The DA never even looked at the motion until that day so she said the people had no objection. The judge continued and asked the DA to look deeper as this was very serious (GUNS!!!!!). Ofcourse at the next court date the DA was strongly opposed and his motion was denied along with his and many others second amendment rights. The judge said this would require anyone loosing second amendment rights to be advised of this before entering a plea or the boykin/tahl forms to be changed.

How can he know that he will not be charged by the Feds if he buys a gun?

This former soldier was really screwed. The judge even admitted it but he didn't want to risk having other pleas thrown out.

Can he own a firearm? One PFEC came back yes and one no. The people at the DOJ give him different answers and know less then he does. He has talked to many good lawyers and learned a lot but no real clear answer that he will nit be charged.
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  #48  
Old 11-23-2009, 12:26 PM
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Quote:
Originally Posted by GrizzlyGuy View Post
I agree in principle, but CA laws make that subject to abuse by the state (as in this case, for example). If a LEO decides, all by himself, to take you in on a 5150 he is required to confiscate your firearms. They can keep them for 30 days, and longer if they petition the court. All of this on the word of a single LEO, no court involvement, no due process. Add the time it takes to get the release forms back from DOJ and you've lost RKBA for a significant amount of time.

If the LEO further claims that you are a danger to yourself or others, and the hospital intake person agrees, you now have a 5-year prohibition, even if they release you a few hours later. The hospital person is likely to 'play it safe' and go along with the LEO. No court involvement, no due process, although the law allows you to petition the court for relief of the prohibition. That takes time and money (pay a lawyer) and not everyone has the means to pay a lawyer.

The restraining order and protective order laws are subject to abuse by the state as well, as judges often grant those based on a claim from a single individual without requiring additional evidence or corroboration. Bang, there goes your RKBA for the duration of the order, plus the additional wait-for-DOJ-release time.
Although the comment was taken as a general I will then add to it, after having been convicted of a crime and provided their due process.

Before rights are removed there must be a trial.
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  #49  
Old 11-24-2009, 10:13 AM
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Isn't this essentially a question of level of scrutiny? Perhaps I don't know enough to guess, but it seems that the issue is whether the state can show that your conviction constitutes the kind of evidence of state interest sufficient for interfering with the right, and also the appropriate level of review. I'm guessing the level of review would be less than whatever it is for a law-abiding citizen, but anything above rational basis would eliminate the worst of these disarmament laws.

I'm basing that on a half-remembered case I saw on Volokh where a judge said that disarmament without review or appeal for someone merely charged with a crime unrelated to violence (possession of kiddie porn, I think) wasn't sufficient. It sounded like the judge was saying that under any reasonable post-Heller level of review, the law was too arbitrary and too unconnnected to the crime to pass.

This game of reverse-engineering the law without sufficient knowledge is kinda fun.

7x57

It wasn't just at Volokh. The matter was discussed here on CalGuns back in January:

http://www.calguns.net/calgunforum/s...ght=magistrate

I haven't heard of anything on it since then though.

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  #50  
Old 11-24-2009, 11:17 AM
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Originally Posted by Mulay El Raisuli View Post
It wasn't just at Volokh. The matter was discussed here on CalGuns back in January:

http://www.calguns.net/calgunforum/s...ght=magistrate
I'm sure that's where I got the link.

Quote:
I haven't heard of anything on it since then though.
It would be sort of interesting to know, but it was the ruling about condition of release on bail that really mattered and not the case.

7x57
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