Calguns.net  

Home My iTrader Join the NRA Donate to CGSSA Sponsors CGN Google Search
CA Semiauto Ban(AW)ID Flowchart CA Handgun Ban ID Flowchart CA Shotgun Ban ID Flowchart
Go Back   Calguns.net > POLITICS, LITIGATION AND ACTIVISM > 2nd Amend. Litigation Updates & Legal Discussion
Register FAQ Members List Calendar Mark Forums Read

2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

Reply
 
Thread Tools Display Modes
  #2561  
Old 08-09-2018, 6:58 PM
abinsinia's Avatar
abinsinia abinsinia is offline
Member
 
Join Date: Feb 2015
Posts: 482
iTrader: 1 / 100%
Default

I'm not sure why people bring up taking brass with microstamps on them from the range and putting it at a crime scene ..

Lots of brass has people's thumb prints on it from loading it. You could takes brass right now from a range and spread it around a crime scene with thumb prints and connect people to crimes. Guess what the CADOJ takes when you buy a gun, yeah, thumb prints.

The microstamps aren't really different from your thumb print.
Reply With Quote
  #2562  
Old 08-09-2018, 8:13 PM
Old4eyes's Avatar
Old4eyes Old4eyes is offline
Senior Member
 
Join Date: Feb 2010
Location: Nevada
Posts: 1,439
iTrader: 0 / 0%
Default

"The microstamps aren't really different from your thumb print."

The multiple vendors (people) are turning out new products (kids) with thumb prints and the kids work.

No vendor is turning out a workable gun that has microstamping. That is a difference.
__________________
Send Lawyers, Guns and Money - On second thought, hold the Lawyers.
Reply With Quote
  #2563  
Old 08-09-2018, 10:00 PM
kemasa's Avatar
kemasa kemasa is offline
Calguns Addict
 
Join Date: Jun 2005
Location: Ventura County, CA
Posts: 9,591
iTrader: 6 / 100%
Default

Quote:
Originally Posted by abinsinia View Post
Guess what the CADOJ takes when you buy a gun, yeah, thumb prints.
You don't know what they do with the thumbprint and why they do it, do you? They don't remember why either it seems.

Quote:
The microstamps aren't really different from your thumb print.
Really? You have a thumb with a print on it, how many guns have microstamps? How well does each work?

Don't fall for it. It is basically just a gun ban.
__________________
Kemasa.
FFL Transfer/Special Order Dealer since 1993.
Net-FFL list maintainer.

Never try to teach a pig to sing. You waste your time and you annoy the pig. - Robert A. Heinlein
Reply With Quote
  #2564  
Old 08-09-2018, 10:38 PM
IVC's Avatar
IVC IVC is offline
I need a LIFE!!
 
Join Date: Jul 2010
Location: Temecula
Posts: 14,030
iTrader: 3 / 100%
Default

Quote:
Originally Posted by Chewy65 View Post
A firearm having been connected to a crime by ballistics or otherwise can then be connected to the owner of record through the serial number.
If the owner says "I have no idea what you're talking about," does the "owner of record" provide any particular benefit to the prosecution?
__________________
NRA Benefactor Member
Reply With Quote
  #2565  
Old 08-10-2018, 5:37 AM
champu's Avatar
champu champu is offline
NRA Member, CRPA Member,
CGN Contributor
 
Join Date: Nov 2013
Location: Redondo Beach
Posts: 757
iTrader: 0 / 0%
Default

Quote:
Originally Posted by abinsinia View Post
I'm not sure why people bring up taking brass with microstamps on them from the range and putting it at a crime scene ..

Lots of brass has people's thumb prints on it from loading it. You could takes brass right now from a range and spread it around a crime scene with thumb prints and connect people to crimes. Guess what the CADOJ takes when you buy a gun, yeah, thumb prints.

The microstamps aren't really different from your thumb print.
If a resizing die were as effective at removing micro stamps (however and wherever they are hypothetically imprinted) as a case tumbler is at removing finger prints then you might have a point.
Reply With Quote
  #2566  
Old 08-10-2018, 5:49 AM
abinsinia's Avatar
abinsinia abinsinia is offline
Member
 
Join Date: Feb 2015
Posts: 482
iTrader: 1 / 100%
Default

Quote:
Originally Posted by kemasa View Post
Don't fall for it. It is basically just a gun ban.
I agree, I never said it's a good idea.

Quote:
Originally Posted by champu View Post
If a resizing die were as effective at removing micro stamps (however and wherever they are hypothetically imprinted) as a case tumbler is at removing finger prints then you might have a point.
It's not the resizing die, it's the primer removal makes quick work of it.

Last edited by abinsinia; 08-10-2018 at 5:51 AM..
Reply With Quote
  #2567  
Old 08-10-2018, 8:28 AM
Sousuke Sousuke is offline
Senior Member
 
Join Date: Mar 2012
Posts: 1,796
iTrader: 0 / 0%
Default

Quote:
Originally Posted by abinsinia View Post


It's not the resizing die, it's the primer removal makes quick work of it.
Remember, the requirement is two stamps.
__________________
WTB: Chronograph
WTB: T Series Hi Power
WTB: Bisley Revolver (Uberti type)
WTB: Pietta 45lc conversion cylinder
Reply With Quote
  #2568  
Old 08-10-2018, 9:16 AM
kemasa's Avatar
kemasa kemasa is offline
Calguns Addict
 
Join Date: Jun 2005
Location: Ventura County, CA
Posts: 9,591
iTrader: 6 / 100%
Default

Reloaded ammo could be an issue. If the person gets range brass and has a firearm which doesn't have the microstamp, then if they are caught, it could be reasonable doubt for a jury since the microstamp points to someone else.

But lets say it is perfect and there is no reloaded ammo. So the government can trace the firearm to the original purchaser. Since criminals can't buy firearms legally, it won't trace to them. This means that it is likely that the firearm was stolen or illegally sold. If it was stolen, the trace is worthless since it would stop there. If it was illegally sold, unless you have multiple firearms which go through a given person or gun shop, it would be hard to prove anything.

Then there are a lot of older firearms which don't have the microstamp, so that could make those firearms much more valuable to criminals. Since it is just a limited law, then it means that it would be likely that the firearms would come from locations where it isn't required or older firearms which don't have it, so it won't help a thing.

Unless you can find the firearm, worse than a needle in a haystack, it won't help at all and with the no questions asked destruction of firearms gun buy backs it means that it won't matter at all since the firearm can be safely disposed of.

Then add to all that, it is likely that it would be possible to modify the microstamping so that it is useless. All of this means that it only costs money to the law abiding and has little, if any, benefit for criminal acts.
__________________
Kemasa.
FFL Transfer/Special Order Dealer since 1993.
Net-FFL list maintainer.

Never try to teach a pig to sing. You waste your time and you annoy the pig. - Robert A. Heinlein
Reply With Quote
  #2569  
Old 08-10-2018, 10:16 AM
Chewy65 Chewy65 is offline
Veteran Member
 
Join Date: Dec 2013
Posts: 3,337
iTrader: 0 / 0%
Default

Quote:
Originally Posted by IVC View Post
If the owner says "I have no idea what you're talking about," does the "owner of record" provide any particular benefit to the prosecution?
You tell us. If the last known owner has no explanation as to why he doesn't have the gun, like he made a theft report, sold it, lost it, or whatever, the benefit could be a narrowing of the investigation. However the owner may have a lead for the investigator, such as identifying who borrowed it or very likely stole it. That may lead to a dead end but it may not.

Last edited by Chewy65; 08-10-2018 at 10:26 AM..
Reply With Quote
  #2570  
Old 08-10-2018, 10:57 AM
Uncivil Engineer Uncivil Engineer is offline
Member
 
Join Date: Nov 2016
Posts: 297
iTrader: 0 / 0%
Default

Quote:
Originally Posted by Chewy65 View Post
You tell us. If the last known owner has no explanation as to why he doesn't have the gun, like he made a theft report, sold it, lost it, or whatever, the benefit could be a narrowing of the investigation. However the owner may have a lead for the investigator, such as identifying who borrowed it or very likely stole it. That may lead to a dead end but it may not.
This argument is completely academic, microstamping doesn't bloody work. Until at least one hand gun can be mass produced that satisfies the requirement the state legislature is just banning all new guns.
Reply With Quote
  #2571  
Old 08-10-2018, 11:23 AM
kemasa's Avatar
kemasa kemasa is offline
Calguns Addict
 
Join Date: Jun 2005
Location: Ventura County, CA
Posts: 9,591
iTrader: 6 / 100%
Default

Quote:
Originally Posted by Uncivil Engineer View Post
This argument is completely academic, microstamping doesn't bloody work. Until at least one hand gun can be mass produced that satisfies the requirement the state legislature is just banning all new guns.
This.

Unless and until you can show that microstamping works LONG TERM, then it shouldn't even be considered. How many rounds can be accurately microstamped? The answer might be zero, but it would need to be thousands of rounds in order for it to even start to hope that it would be effective, then it has to be done in such a manner that criminals can't defeat it since if criminals defeat it, it is useless.
__________________
Kemasa.
FFL Transfer/Special Order Dealer since 1993.
Net-FFL list maintainer.

Never try to teach a pig to sing. You waste your time and you annoy the pig. - Robert A. Heinlein
Reply With Quote
  #2572  
Old 08-10-2018, 11:44 AM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 649
iTrader: 0 / 0%
Default

Even the State admits the 'technology isn't there, yet;' but, they blame the manufacturers.

More than a decade after it passed, California gun law still being fought in court

Quote:
...Firearms manufacturers say microstamping is still beyond the range of modern technology. They’ve refused to sell new models of the handguns in the state since the law took effect, and on Wednesday they asked an apparently skeptical state Supreme Court to halt the law’s enforcement...

The state’s lawyer, Deputy Attorney General Janill Richards, disagreed. Gunmakers, she countered, will have the means to comply with the law sometime in the foreseeable future, and the lawmakers are entitled to enact such challenging measures as “an incentive to push technology forward.” ...

The state’s 2013 certification cited the availability of microstamping patents and did not specify the technology needed for compliance. In a court filing, the Giffords Law Center to Prevent Gun Violence declared that microstamping “has been extensively tested and found to be feasible and reliable,” but argued that the state also has the authority to pass “technology-forcing” laws requiring companies to meet new standards, like clean-air goals for cars, to remain in the California market...
You see? You guys have it backward.

The Legislature sees a patent. As a result, they decide the technology exists and is feasible. So, they pass a Law to 'force' manufacturers to implement the technology they 'believe' exists.

Thus, it is the manufacturers who are refusing to comply. That's why the manufacturer's are not selling newer model firearms in California. It's not about the roster. It's about the manufacturers failing to comply with the Law by implementing (ahem) 'existing' technology. That's why the roster exists; i.e., to force manufacturers to do their part in helping with public safety.

As I noted in another thread... Everyone is happy if you don't let a little thing like reality get in the way. Right? Or, as the State Supreme Court put it...

Quote:
In sum, the case law recognizes that a statute may contain an implied exception for noncompliance based on impossibility where such an exception reflects a proper understanding of the legislative intent behind the statute. We are not aware of any appellate precedent in California that has invoked Civil Code section 3531 or impossibility of compliance to invalidate a statute itself.
The Legislative intent is to 'force the technology' to be developed and implemented, not to ban guns. Therefore, the simple impossibility to implement the technology 'now' does not negate the Law. The manufacturers just need to work harder to make the (ahem) 'existing' technology work.

Last edited by TrappedinCalifornia; 08-10-2018 at 11:55 AM..
Reply With Quote
  #2573  
Old 08-10-2018, 11:59 AM
Uncivil Engineer Uncivil Engineer is offline
Member
 
Join Date: Nov 2016
Posts: 297
iTrader: 0 / 0%
Default

They should read some of the free energy patents and outlaw so power plants.
Quote:
Originally Posted by TrappedinCalifornia View Post
Even the State admits the 'technology isn't there, yet;' but, they blame the manufacturers.

More than a decade after it passed, California gun law still being fought in court



You see? You guys have it backward.

The Legislature sees a patent. As a result, they decide the technology exists and is feasible. So, they pass a Law to 'force' manufacturers to implement the technology they 'believe' exists.

Thus, it is the manufacturers who are refusing to comply. That's why the manufacturer's are not selling newer model firearms in California. It's not about the roster. It's about the manufacturers failing to comply with the Law by implementing (ahem) 'existing' technology. That's why the roster exists; i.e., to force manufacturers to do their part in helping with public safety.

As I noted in another thread... Everyone is happy if you don't let a little thing like reality get in the way. Right? Or, as the State Supreme Court put it...



The Legislative intent is to 'force the technology' to be developed and implemented, not to ban guns. Therefore, the simple impossibility to implement the technology 'now' does not negate the Law. The manufacturers just need to work harder to make the (ahem) 'existing' technology work.
Reply With Quote
  #2574  
Old 08-10-2018, 2:43 PM
HiND-SIGHT HiND-SIGHT is offline
Member
 
Join Date: Mar 2011
Posts: 255
iTrader: 3 / 100%
Default

Why didn’t the prosecution make the state prove that the features and method of testing the handguns are actually in the interest of public safety? That’s the point of the lawsuit.......and an easy thing to prove the state wrong by. (LEOs use firearms not approved for public safety)
__________________
Scrödinger's Gun Case: the serial number inside is in a state of quantum flux and can appear in different random states unrelating to how a person views it.
Reply With Quote
  #2575  
Old 08-10-2018, 2:50 PM
kemasa's Avatar
kemasa kemasa is offline
Calguns Addict
 
Join Date: Jun 2005
Location: Ventura County, CA
Posts: 9,591
iTrader: 6 / 100%
Default

Quote:
Originally Posted by HiND-SIGHT View Post
Why didn’t the prosecution make the state prove ...
Just to be accurate, it would be the plaintiff, not the prosecution. Prosecution is only in criminal cases, not civil, and is the government, not a civilian.
__________________
Kemasa.
FFL Transfer/Special Order Dealer since 1993.
Net-FFL list maintainer.

Never try to teach a pig to sing. You waste your time and you annoy the pig. - Robert A. Heinlein
Reply With Quote
  #2576  
Old 08-10-2018, 5:11 PM
Chewy65 Chewy65 is offline
Veteran Member
 
Join Date: Dec 2013
Posts: 3,337
iTrader: 0 / 0%
Default

Quote:
Originally Posted by kemasa View Post
Just to be accurate, it would be the plaintiff, not the prosecution. Prosecution is only in criminal cases, not civil, and is the government, not a civilian.
The plaintiff usually has the burden of proof and here the 9th Circuit bent over backwards to defer to the Legislature's finding of practicability.
Reply With Quote
  #2577  
Old 08-11-2018, 7:03 AM
HarryS HarryS is offline
Member
 
Join Date: Mar 2007
Posts: 246
iTrader: 0 / 0%
Default

Microstamping is the bastard fanciful cousin of fired bullet databases, upon which much treasure was wasted by multiple smarties who knew they could make it work "this time". Sort of like marxists, they were, except they finally gave up after failing to contribute to solving a single case anywhere.

Marxists never give up, but that's another subject.
__________________
NRA Life Member
Reply With Quote
  #2578  
Old 08-13-2018, 6:08 AM
AdamVIP AdamVIP is offline
Member
 
Join Date: Nov 2012
Posts: 339
iTrader: 3 / 100%
Default

Just wait till CA decides that since everyone buys revolvers now they need to change those as well. Every new revolver must now stamp and auto eject the casings. If it can't you cant sell it. This case has literally set the precedent they can make a law where as long as you can dream its possible its good enough for the 9th circuit.
Reply With Quote
  #2579  
Old 08-13-2018, 12:23 PM
keepitlow's Avatar
keepitlow keepitlow is offline
Junior Member
 
Join Date: Oct 2010
Location: Born in L.A.-NYC is 2nd home-Rustbelt is home base
Posts: 13
iTrader: 0 / 0%
Default

Quote:
Originally Posted by kemasa View Post
You don't know what they do with the thumbprint and why they do it, do you? They don't remember why either it seems.



Really? You have a thumb with a print on it, how many guns have microstamps? How well does each work?

Don't fall for it. It is basically just a gun ban.
Concur. Just another stop gap measure to chip away at gun rights until they have the vote to repeal the 2A. Once that happens, it is all over for guns.

Just look at all the dem controlled states. No mystery how they work when it comes to guns.
Reply With Quote
  #2580  
Old 08-13-2018, 12:41 PM
Solidsnake87's Avatar
Solidsnake87 Solidsnake87 is offline
Veteran Member
 
Join Date: Jun 2006
Location: Reno, NV
Posts: 4,176
iTrader: 22 / 100%
Default

Honestly, the manufacturers should band together and allow their guns to fall off the roster. Once off, they can't renew...... It won't look good if only second-hand pistols of old design are the only ones available in ca. It would show the ban for what it is....a ban.
__________________
Quote:
Replying to craigslist for casual encounters is like pokemon with STDs. Gotta catch em all
Quote:
If Hell ever needed a operations manual all it would need is a copy of California's laws
.
Reply With Quote
  #2581  
Old 08-13-2018, 2:22 PM
Offwidth Offwidth is offline
Member
 
Join Date: May 2018
Posts: 152
iTrader: 0 / 0%
Default

Quote:
Originally Posted by keepitlow View Post
Just look at all the dem controlled states. No mystery how they work when it comes to guns.
If 3/4 of states are firmly controlled by D, guns will be the least of our problems.

Soviet Union 2.0
Reply With Quote
  #2582  
Old 08-16-2018, 9:12 AM
speedrrracer speedrrracer is offline
Veteran Member
 
Join Date: Dec 2011
Posts: 3,136
iTrader: 1 / 100%
Default

Quote:
Originally Posted by Solidsnake87 View Post
Honestly, the manufacturers should band together and allow their guns to fall off the roster. Once off, they can't renew...... It won't look good if only second-hand pistols of old design are the only ones available in ca. It would show the ban for what it is....a ban.
If the mfrs allow their guns to fall off, then it's not a ban, it's a voluntary act on the part of the mfr.

They have other avenues, should they wish. They could make a Dormant Commerce Clause case and bring it against the microstamping requirements:

Quote:
Originally Posted by US v. Lopez, 514 U.S. 579 (1995)
One element of our dormant Commerce Clause jurisprudence has been the principle that the States may not impose regulations that place an undue burden on interstate commerce, even where those regulations do not discriminate between in-state and out-of-state businesses
It might not be difficult to show that microstamping places an undue burden on interstate commerce, since they are apparently "impossible" to make. OTOH, it might be very difficult, IANAL. But it's a legal option (even if a poor one, perhaps), whereas voluntarily letting their guns fall off is not.

They could also go after the law on rational basis grounds, or they could use the statistics to show that gun violence hasn't appreciably changed under the roster, therefore it doesn't survive intermediate scrutiny.

Maybe they could throw all those arguments into the gumbo, and hope SCOTUS likes at least one of them -- that's a tactic I know nothing about -- might be a good idea or a terrible one.
__________________
Reply With Quote
  #2583  
Old 08-16-2018, 9:19 AM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 649
iTrader: 0 / 0%
Default

Quote:
Originally Posted by speedrrracer View Post
If the mfrs allow their guns to fall off, then it's not a ban, it's a voluntary act on the part of the mfr.
In essence, this is the Government's argument regarding manufacturers not incorporating microstamping; i.e., that it's 'voluntary' on the manufacturers' part and that the legislation was needed to 'force' the development of the technology. Thus, microstamping is not a 'ban,' but simply manufacturers failing to act in the interest of public safety.
Reply With Quote
  #2584  
Old 08-16-2018, 9:48 AM
speedrrracer speedrrracer is offline
Veteran Member
 
Join Date: Dec 2011
Posts: 3,136
iTrader: 1 / 100%
Default

Quote:
Originally Posted by TrappedinCalifornia View Post
In essence, this is the Government's argument regarding manufacturers not incorporating microstamping; i.e., that it's 'voluntary' on the manufacturers' part and that the legislation was needed to 'force' the development of the technology. Thus, microstamping is not a 'ban,' but simply manufacturers failing to act in the interest of public safety.
And we know the 9th was all too happy to lap that BS up like a dog at its water bowl.

But I don't know of any support for that decision that would fly with SCOTUS -- there may well be a ton, I'd like to hear about it, but I don't know of any.

So let's assume a new case, not Pena, just challenging the microstamping requirement on dormant commerce clause grounds or whatever. SCOTUS sees that CA claims the mfrs can do X, the mfrs claim they can't do X or X is a massive burden on interstate commerce.

CA says "The mfrs are unwilling / lazy / stupid / whatever".
The mfrs say, "We're the mfrs, we know what's possible / massively burdensome, not you"

OK, that's a bunch of testimony. Experts flying around on both sides. What legal framework exists to help guide SCOTUS in making their decision? I don't know how to do an effective search for precedent requiring the implementation of allegedly impossible technology.

I see that burdens are permissible under the dormant commerce clause if they pass a 2-step test, but I also see that microstamping clearly doesn't pass any part of that test, so we're back to not knowing. The state is not the market participant, Congress did not give CA permission to own this space, and microstamping is not the only way to achieve the state's goal of reducing gun violence.
__________________
Reply With Quote
  #2585  
Old 08-16-2018, 11:30 AM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 649
iTrader: 0 / 0%
Default

Quote:
Originally Posted by speedrrracer View Post
...But I don't know of any support for that decision that would fly with SCOTUS -- there may well be a ton, I'd like to hear about it, but I don't know of any...
Laws That Are 'Impossible' to Follow Can Still Be Constitutional, Says California Court

Quote:
...Strip away the absurdity, and it's essentially a very technical ruling. The court acknowledges its role in making sure that people are not punished for being unable to comply with a law because it's impossible—that would be an unconstitutional violation of a person's rights. It just can't use that basis for invalidating the law itself...

Laws that are "impossible" to comply with do, in subtle ways, threaten the livelihoods of citizens as they struggle to adjust to these demands. They do challenge our freedom as citizens by attempting to force markets and innovators to dance to the government's tune—or the tune of the people with powerful government connections. There's a saying: "Nothing's impossible for the person who doesn't have to do it." Some of those people have the power to enshrine the impossible as law and leave the rest of us figuring out how to adapt.
Now, that was the California Supreme Court. Bear this line in mind...

Quote:
On appeal, the Court of Appeal observed that “the courts must defer to the Legislature’s factual determination unless it is palpably arbitrary and must uphold the challenged legislation so long as the Legislature could rationally have determined a set of facts that support it.”
So, how does that translate for SCOTUS? It sounds suspiciously like the following from Souter's dissent in United States v. Morrison (2000)...

Quote:
...Our cases, which remain at least nominally undisturbed, stand for the following propositions. Congress has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate commerce... The fact of such a substantial effect is not an issue for the courts in the first instance... but for the Congress, whose institutional capacity for gathering evidence and taking testimony far exceeds ours. By passing legislation, Congress indicates its conclusion, whether explicitly or not, that facts support its exercise of the commerce power. The business of the courts is to review the congressional assessment, not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact... Any explicit findings that Congress chooses to make, though not dispositive of the question of rationality, may advance judicial review by identifying factual authority on which Congress relied...
In other words, depending on which 'side' is in the majority on the Court, there is a working paradigm that the Court must defer to Congress in terms of "factual authority;" the assumption or presumption or premise being that Congress is better suited than the Court to investigate such matters. Now, if that sounds familiar, remember that the panel in the 9th determined...

Quote:
...We do not need to reach the question of whether these limitations fall within the scope of the Second Amendment’s right to bear arms because, even assuming coverage, these provisions pass constitutional muster. The California law only regulates commercial sales, not possession, and does so in a way that does not impose a substantial burden on Purchasers...

...it does not ban possession or use of guns manufactured without microstamping features...
Also...

Quote:
...Because legislatures are “not obligated, when enacting [their]statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review,” we should not conflate legislative findings with “evidence” in the technical sense...

...Nor do we substitute our own policy judgment for that of the legislature... When policy disagreements exist in the form of conflicting legislative “evidence,” we “owe [the legislature’s] findings deference in part because the institution is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.” ...
As a result, depending on the majority's paradigm, deference will be paid to the Legislature's "fact finding" ability being "superior" to that of the Court's. Since Microstamping does not ban ALL handguns, only new models produced since 2013, the Court could determine it is strictly an issue of commerce and States have long been allowed to be more restrictive then the Federal Government when it comes to purchasing firearms. As the decision states...

Quote:
..The microstamping restrictions on commercial manufacture and sale implicate the rights of gun owners far less than laws directly punishing the possession of handguns...
Further, Heller is seen as providing some 'cover'...

Quote:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
(emphasis mine)

That's just a cursory glance and off-the-top-of-the-head simplistics. But, you get the idea. It's not necessarily whether specific precedent exists. It's whether the majority can 'create' a 'plausible' argument based on...

Put another way, SCOTUS could simply reiterate the 9th's logic (or lack thereof), using existing statements in decisions from both the majority and dissents. Which is, at least in part, what the 9th's panel appears to have done.

Last edited by TrappedinCalifornia; 08-16-2018 at 11:58 AM..
Reply With Quote
  #2586  
Old 08-16-2018, 12:22 PM
speedrrracer speedrrracer is offline
Veteran Member
 
Join Date: Dec 2011
Posts: 3,136
iTrader: 1 / 100%
Default

Quote:
Originally Posted by TrappedinCalifornia View Post
In other words, depending on which 'side' is in the majority on the Court, there is a working paradigm that the Court must defer to Congress in terms of "factual authority;" the assumption or presumption or premise being that Congress is better suited than the Court to investigate such matters. Now, if that sounds familiar, remember that the panel in the 9th determined...
First, thanks. Great response.

So, sure, I remember what CASC said about "impossibility" (I also know that a dissent by a now-retired Justice and a dollar won't get you a cup of coffee).
We know the CA legislature gets to decide what is what -- for California -- and the 9th will defer to their findings. That's all fine, and your presentation makes a great reminder.

But I don't see how any of that is a big deal to this theoretical new case. Such a challenge wouldn't be saying that CA isn't right about CA, it would be saying microstamping poses a severe burden on interstate commerce, and the CA legislature has no authority over that arena. It's findings (even if it had some) mean nothing in that arena, that arena is for Congress to own (with certain exceptions which don't appear to apply here). I'm not saying field preemption makes microstamping go away, just that CA is no more a source of reliable information in the interstate arena than any other source, so we transition from having to kneel before the findings of the CA legislature to being on a level playing field.

Quote:
Since Microstamping does not ban ALL handguns, only new models produced since 2013, the Court could determine it is strictly an issue of commerce
To my ears, banning all new products from any company since 2013 sounds like a very serious impact on that company's ability to conduct commerce, perhaps even a fatal blow. Does anyone think Apple would still be in business if they couldn't sell anything more recent that their 2013 offerings? And yes, this new imaginary challenge is strictly an issue of commerce, as burdens on interstate commerce can be unconstitutional under the dormant commerce clause.

I'm not looking for the "ban" angle -- I don't think that's available here. I am looking for the "burden on interstate commerce" angle.

Totally agree on the Heller quote about conditions and qualifications on the commercial sale of arms (although I personally disagree that Heller intended that to provide cover to such a thing as microstamping), it is certainly going to be brought up and could be a stumbling block. Same vein as "longstanding" -- people are trying to figure out if that means 40 years or 50 years or what, and no way does an originalist like Scalia buy into that BS -- "longstanding" means "founding era", in my ignorant opinion.

I'm not saying, "I have found the Magic Answer and this path cannot fail to overturn microstamping". I'm saying, "I don't know of any reason why it would be impossible for this path to succeed; it seems to have a fair shot from my perspective, somebody educate me".

Quote:
It's not necessarily whether specific precedent exists. It's whether the majority can 'create' a 'plausible' argument based on...
No question about it, but if there is specific precedent, it provides that veneer of legitimacy to a decision acting in concert with that precedent. Of course you're right about the majority, but I was just trying to get the lay of the land wrt precedent before proceeding any further. In that vein, what are your favorite legal research websites, and why?
__________________
Reply With Quote
  #2587  
Old 08-16-2018, 1:07 PM
sarabellum sarabellum is offline
Senior Member
 
Join Date: Jun 2010
Posts: 1,109
iTrader: 9 / 100%
Default

Quote:
Originally Posted by speedrrracer View Post
To my ears, banning all new products from any company since 2013 sounds like a very serious impact on that company's ability to conduct commerce, perhaps even a fatal blow. Does anyone think Apple would still be in business if they couldn't sell anything more recent that their 2013 offerings? And yes, this new imaginary challenge is strictly an issue of commerce, as burdens on interstate commerce can be unconstitutional under the dormant commerce clause.
Under the balancing test of Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)( a facially neutral state law is unconstitutional when “the burden imposed” on interstate commerce “is clearly excessive in relation to the putative local benefits” of the law); see also Bibb v. Navajo Freight Lines, Inc. 359 U.S. 520 (1959).
Reply With Quote
  #2588  
Old 08-16-2018, 1:13 PM
speedrrracer speedrrracer is offline
Veteran Member
 
Join Date: Dec 2011
Posts: 3,136
iTrader: 1 / 100%
Default

Quote:
Originally Posted by sarabellum View Post
Under the balancing test of Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)( a facially neutral state law is unconstitutional when “the burden imposed” on interstate commerce “is clearly excessive in relation to the putative local benefits” of the law); see also Bibb v. Navajo Freight Lines, Inc. 359 U.S. 520 (1959).
Good finds -- thanks; I'll start reading
__________________
Reply With Quote
  #2589  
Old 08-16-2018, 1:22 PM
Chewy65 Chewy65 is offline
Veteran Member
 
Join Date: Dec 2013
Posts: 3,337
iTrader: 0 / 0%
Default

Doesn't this boil down to the degree to which conditions and qualifications on commerce burden a persons right to possess or use those firearms. If you are pro 2A the burden is so great it is all but a total prohibition on the core of a protected right. If you are on the other side it is merely a commercial regulation with little effect on a right subject to regulations to promote a state's police power. Whatever happened to requiring a reasonable fit? If you simply defer to the state's finding that microstamping can work doesn't the federal judiciary abandon its duty to determine reasonableness of fit?
Reply With Quote
  #2590  
Old 08-16-2018, 2:14 PM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 649
iTrader: 0 / 0%
Default

Quote:
Originally Posted by speedrrracer View Post
... And yes, this new imaginary challenge is strictly an issue of commerce, as burdens on interstate commerce can be unconstitutional under the dormant commerce clause...

Totally agree on the Heller quote about conditions and qualifications on the commercial sale of arms (although I personally disagree that Heller intended that to provide cover to such a thing as microstamping), it is certainly going to be brought up and could be a stumbling block...
Bear in mind that there are exceptions to precluding State laws from being able to burden interstate commerce...

Quote:
So state laws that burden interstate commerce are permissible if they pass the two-part test. There are three exceptions which, when applicable, will permit a court to find a state law is constitutional despite being discriminatory against interstate commerce.
  • First, if the state law is necessary to achieve an important state goal, the law might not run afoul of the negative implications of the Commerce Clause. In order to be necessary, there must be no other means of achieving the goal. So while a non-discriminatory law only needs to be rationally related to a legitimate state goal, a law which discriminates against interstate commerce must be necessary to achieve an important state goal in order to be upheld.
  • Second, if Congress authorized the states to pass legislation in a certain area despite the effect on interstate commerce, so long as the law does not violate other constitutional provisions, it will be upheld.
  • Finally, the “Market Participant” exception allows states to discriminate against out-of-staters insofar as the state itself is acting as a market participant. For example, when a state is engaging in the buying or selling of goods it may choose to buy from local companies at a higher price than it would pay outside the state, or sell to local companies at a lower price than it would otherwise receive. But in the absence of one of these three exceptions, laws discriminating against out-of-staters will be struck down as violating the Commerce Clause.
If you can show...

Quote:
Originally Posted by speedrrracer
...microstamping is not the only way to achieve the state's goal of reducing gun violence.
...then #1 wouldn't apply.

Since "government agencies" are exempt, you would likely be able to demonstrate...

Quote:
...The state is not the market participant...
So, #3 would likely not be available.

However, what about #2? By what authority are States 'allowed' greater restrictions on firearms and the commercial sale thereof than Federal Law? States get to set the age, determine background check requirements (PPT), carry, 'red flag' laws, waiting periods, etc. Is it simply the 10th Amendment or the absence of specific, Federal Law or Heller (presumptively Constitutional) or something else? Might there be a reason "public safety" has become almost a shibboleth for these 'gun safety' laws? Could it be an argument that while Congress didn't, specifically, 'authorize' the State, they have not passed a law 'prohibiting' States from...???

After all that, you'll have to demonstrate an actual burden on interstate commerce. The fact remains that manufacturers CAN keep their products on the roster, thereby eligible for sale; they simply can't add 'new' products without meeting the LCI, magazine disconnect, and microstamping requirements. So, you're going to have to show that maintaining a firearm on the roster and the loss of potential sales of new products is an 'undue,' not simply an 'incidental' burden. Which brings us to...

Quote:
Originally Posted by Chewy65
Doesn't this boil down to the degree to which conditions and qualifications on commerce burden a persons right to possess or use those firearms. If you are pro 2A the burden is so great it is all but a total prohibition on the core of a protected right. If you are on the other side it is merely a commercial regulation with little effect on a right subject to regulations to promote a state's police power...
Remember, you don't have to convince me. I agree it's a burden; not just on the 2nd Amendment right, but on interstate commerce as well. In fact, as I've observed before, anti-civil rights activists (including gun control proponents) are focusing on State and Local levels; not only because they have a greater chance of individual success in a greater number of regions, but also due to 'loopholes' such as the 'exceptions' I just mentioned and interpretations coming from lower courts. But, I'm pro-2nd Amendment.

Quote:
Originally Posted by speedrrracer
...what are your favorite legal research websites, and why?
I don't have any 'favorites.' Usually, I start with what I know, then move to Google with judiciously created search strings (bearing in mind that accusations have been made that FindLaw is 'gaming' Google), and go where the trail leads.

*Edited to add...

Quote:
Originally Posted by speedrrracer
Such a challenge wouldn't be saying that CA isn't right about CA, it would be saying microstamping poses a severe burden on interstate commerce, and the CA legislature has no authority over that arena.
Bear in mind that Washington, D.C. now has a microstamping requirement similar to California's; effective 1/1/18. Other States are also entertaining the possibility. So, while California may not have authority over interstate commerce, per se, they and other regions can have a decided impact. (Think online sales and state sales taxes and the interstate commerce implications.)

** Re-edited to add...

You have another issue as well. Justice Thomas no longer agrees with the "Negative Commerce Clause" (a.k.a. Dormant Commerce Clause)...

Quote:
I concur in the judgment. Although I joined C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994), I no longer believe it was correctly decided. The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 610–620 (1997) (Thomas, J., dissenting); Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U. S. 232, 259–265 (1987) (Scalia, J., concurring in part and dissenting in part); License Cases, 5 How. 504, 578–586 (1847) (Taney, C. J.). As the debate between the majority and dissent shows, application of the negative Commerce Clause turns solely on policy considerations, not on the Constitution. Because this Court has no policy role in regulating interstate commerce, I would discard the Court’s negative Commerce Clause jurisprudence.
In other words, you'd be asking one of the five we'd need to 'hang his hat' on something that, as of 2007, he believes has no basis in the Constitution.

Last edited by TrappedinCalifornia; 08-16-2018 at 2:48 PM..
Reply With Quote
  #2591  
Old 08-16-2018, 4:29 PM
speedrrracer speedrrracer is offline
Veteran Member
 
Join Date: Dec 2011
Posts: 3,136
iTrader: 1 / 100%
Default

Quote:
Originally Posted by TrappedinCalifornia View Post
However, what about #2?
I read #2 as:

"Second, if Congress authorized the states to pass legislation in a certain area despite the effect on interstate commerce, so long as the law does not violate other constitutional provisions, it will be upheld."

I know of no Congressional authorization to the states generally, or to CA specifically, stating that "microstamping, despite it's impact on interstate commerce, can be required for pistol sales via legislation" or anything similar. I could well be wrong, but I certainly can find nothing of the sort, so I'm going to run with the assumption that no such authorization exists. Ergo, they don't pass #2.

Quote:
Originally Posted by TrappedinCalifornia View Post
" By what authority are States 'allowed' greater restrictions on firearms and the commercial sale thereof than Federal Law? (snip)
Is it the absence of specific, Federal Law
Since we're talking commerce clause, yes, it's the absence of federal law pertaining to this specific issue (the so-called express preemption), and the absence of federal law pertaining to this area (implied preemption) and the absence of a sufficiently large quantity of Congressional legislation in this general area or an exceptionally broad bit of Congressional legislation over this area which suggests Congress just wants the whole damn pie to itself (field preemption) that allows States to do this.

Quote:
Might there be a reason "public safety" has become almost a shibboleth for these 'gun safety' laws?
No better way to attack a civil right than via the safety angle, imo.

Quote:
After all that, you'll have to demonstrate an actual burden on interstate commerce. The fact remains that manufacturers CAN keep their products on the roster, thereby eligible for sale; they simply can't add 'new' products without meeting the LCI, magazine disconnect, and microstamping requirements.
I'm guessing this part will be easy. CA is a huge market -- 4th or 5th largest economy on planet Earth. The mfrs are invested in their new products for a variety of reasons, but they cannot recoup those investments in CA, because this law bans them from selling their new products here. I imagine any beancounter worth his salt could get you a spreadsheet in under a minute showing the financial impact sustained from having to sell only these feature-poor, less safe, less efficient "older" models compared to their expected sales projections for the amazing, efficient, ultra-safe, latest-greatest models.

Quote:
So, you're going to have to show that maintaining a firearm on the roster and the loss of potential sales of new products is an 'undue,' not simply an 'incidental' burden.
I'm not sure this is true, and I actually think it might be one of the "coolest" things about this approach. From your link:

Quote:
If the law only incidentally burdens interstate commerce, or if the law is nondiscriminatory, the court will balance whether the benefits of the state’s interest are outweighed by the burden on state commerce, by looking to the following: Are there less restrictive alternatives? Are there any conflicts with other states’ regulations?
So first, obviously there are conflicts with other states, since those states allow these guns, and CA does not, creating further problems with interstate commerce, since a vendor in state X cannot offer a non-roster gun for sale via an FFL in CA.

Less restrictive alternatives? Than a tech which doesn't exist? Why yes, choose a tech which does exist.

And generally, the state's interest: reducing gun violence / whatever. Here's is where you might get a free whack at them: You can produce the stats showing that the microstamping law, throughout its existence, has failed to have a significant effect on gun violence / crimes solved / whatever, therefore any impact on interstate commerce is too great an impact, since the state is getting nothing in return. The law has had a negative effect on interstate commerce -- this can be proven easily by the mfrs. The law cannot be shown to have helped in any way whatsoever, since there are no microstamped guns. It's guaranteed that we win this little corner of the overall argument, at least. Not our fault none of these magic guns exist, but it is their fault that the negative impact on interstate commerce exists.


Quote:
Bear in mind that Washington, D.C. now has a microstamping requirement similar to California's; effective 1/1/18. Other States are also entertaining the possibility. So, while California may not have authority over interstate commerce, per se, they and other regions can have a decided impact. (Think online sales and state sales taxes and the interstate commerce implications.)
Maybe. Or maybe these additional states just add to the damage caused to interstate commerce. Part of the whole point of Congress regulating interstate commerce is to prevent a patchwork quilt of 50 different sets of laws. And still none of the states has any authority over interstate commerce, so they can't force us to kneel before their "findings" at SCOTUS, so again, if the statistics show their rosters / microstamps aren't reducing gun violence / number of solved gun crimes (or whatever), then we now have a club we can use to beat them over the head.

Quote:
You have another issue as well. Justice Thomas no longer agrees with the "Negative Commerce Clause" (a.k.a. Dormant Commerce Clause)...

In other words, you'd be asking one of the five we'd need to 'hang his hat' on something that, as of 2007, he believes has no basis in the Constitution.
That's a great point. Hopefully, this is why we have concurring opinions.
ETA: So you're implying that none of the 4 liberals on the Court would agree? I'm shocked at such cynicism! Shocked!

Edited again: For Thomas, we can play the intermediate scrutiny card, which kinda lives in the "incidental burden" portion discussed above. The law burdens conduct under the 2A (I can't get the safest, most reliable guns with the latest features), yet provides zero benefit to the state (demonstrably true, again, since there are no microstamped guns in existence).
__________________

Last edited by speedrrracer; 08-16-2018 at 5:08 PM..
Reply With Quote
  #2592  
Old 08-16-2018, 5:55 PM
abinsinia's Avatar
abinsinia abinsinia is offline
Member
 
Join Date: Feb 2015
Posts: 482
iTrader: 1 / 100%
Default

I was just thinking how recently there's a been some guns released like the M&P 380 Shield EZ 2.0 where they make it very easy to rack the slide.

This is a good example of a gun where some people with disabilities or someone who isn't that strong might really want to get that gun over the original Shield or some other gun.

There are also recoil reducing technologies like the Walther CCP which have reduced recoil , and again that's something someone with disabilities or without much strength might want.

So for example, the first case was the dual tone guns, but you could make it people with disabilities.
Reply With Quote
  #2593  
Old 08-16-2018, 9:14 PM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 649
iTrader: 0 / 0%
Default

Quote:
Originally Posted by speedrrracer View Post
I know of no Congressional authorization to the states generally, or to CA specifically, stating that "microstamping, despite it's impact on interstate commerce, can be required for pistol sales via legislation" or anything similar.
The hurdle you have to get over isn't whether they specifically authorized this or that. Just like States can impact interstate trade on firearms with age restrictions, so-called "assault weapons" restrictions, etc., you'd have to get past how they do not specifically prohibit them from doing so. Remember, the 10th Amendment reads...

Quote:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In other words, in not, specifically prohibiting it, the Government could argue that it is 'authorized' (by the Constitution - e.g., "the Federal Government") to do so. Or, as you suggest...

Quote:
Originally Posted by speedrrracer
Since we're talking commerce clause, yes, it's the absence of federal law pertaining to this specific issue (the so-called express preemption), and the absence of federal law pertaining to this area (implied preemption) and the absence of a sufficiently large quantity of Congressional legislation in this general area or an exceptionally broad bit of Congressional legislation over this area which suggests Congress just wants the whole damn pie to itself (field preemption) that allows States to do this.
Bear in mind that, among the five you'd be depending on, there is a strong States' rights paradigm. Would there be sufficient desire to impinge upon the powers of the State to 'regulate public safety' in the interest of interstate commerce related to 'modern' (post-2013) handgun sales; especially when the Government's declared intent is to 'advance the technology' through legislation? Is it "nonexistent tech" or is it argued to be "too costly" from the manufacturers' perspective?

Put another way, California is arguing that since the patents exist, the tech exists; i.e., simply because manufacturers haven't implemented it, doesn't mean the tech is 'nonexistent.' Thus, the intent of the legislation is to prompt manufacturers to adopt the technology as part of production. Remember...

Quote:
Gun makers acknowledge micro stamping is feasible, but say it can’t possibly be done in two separate places in a handgun’s chamber. But the Giffords Law Center to Prevent Gun Violence, which filed arguments in support of the law, said dual stamping has been tested and certified, with the inventor submitting a declaration to that effect during current legal proceedings.
I think the "arguments in support of the law" to which they are referring is found here. (Note page 15 in particular.) It's not Peña, but it is directly related in terms of the existence of "microstamping technology."

Quote:
Originally Posted by speedrrracer
...they cannot recoup those investments in CA, because this law bans them from selling their new products here...
Bear in mind that the contention is that this is NOT a 'ban.' It is a legislative requirement to incorporate 'existing' technology in the interest of public safety. If the manufacturers refuse to incorporate such technology, that is, according to your own assertion... a voluntary act on the part of the manufacturer.

The bottom line is that you're going to have to be careful in terms of argue the tech is "nonexistent." Is it 'nonexistent' because it doesn't exist or is it 'nonexistent' because manufacturers haven't implemented it?

Quote:
Originally Posted by speedrrracer
So first, obviously there are conflicts with other states, since those states allow these guns, and CA does not, creating further problems with interstate commerce, since a vendor in state X cannot offer a non-roster gun for sale via an FFL in CA.
How many 'products' exist which individual States restrict sales on, creating the type of 'conflict' you cite? If you're going to argue interstate commerce, it's no longer about the specific product as a "Constitutional right," but whether that product complies with the laws of an individual State and whether the restrictions on the product are unrealistically prohibitive from an economic perspective.

For instance, are there pesticides authorized for use in some States, but prohibited in others? Can one purchase certain NFA items in some States, but not others? Do automobiles have to comply with California emissions standards nationwide or only in those States which have adopted those standards? What about so-called "assault weapons;" i.e., can you purchase certain configurations in other States which are precluded from sale in California or New York? How many products might be considered 'conflicted' in terms of their availability in certain States?

Quote:
Originally Posted by speedrrracer
You can produce the stats showing that the microstamping law, throughout its existence, has failed to have a significant effect on gun violence / crimes solved / whatever, therefore any impact on interstate commerce is too great an impact, since the state is getting nothing in return.
Doesn't the standard you suggest potentially preclude virtually any 'new' technology?

Quote:
Originally Posted by speedrrracer
The law has had a negative effect on interstate commerce -- this can be proven easily by the mfrs. The law cannot be shown to have helped in any way whatsoever, since there are no microstamped guns. It's guaranteed that we win this little corner of the overall argument, at least. Not our fault none of these magic guns exist, but it is their fault that the negative impact on interstate commerce exists.
If you conveniently ignore the Legislative intent, you might be correct. It bears repeating, California's argument is that the tech exists and they have a 'right' to promote its incorporation into products in the interest of public safety. It's been the manufacturers' choice not to incorporate it. Thus, any 'negative effect' is not a result of the law, but a result of noncompliance on the part of the manufacturers.

Quote:
Originally Posted by speedrrracer
Part of the whole point of Congress regulating interstate commerce is to prevent a patchwork quilt of 50 different sets of laws.
Again, don't we already have that in relation to many products? Isn't that precisely where we've been headed in terms of the 2nd Amendment 'right to keep and bear' with the Supreme Court's resistance to new cases post- Heller and McDonald and the deliberate lower court "misreadings and misinterpretations" of both?

Quote:
Originally Posted by speedrrracer
The law burdens conduct under the 2A (I can't get the safest, most reliable guns with the latest features), yet provides zero benefit to the state (demonstrably true, again, since there are no microstamped guns in existence).
I keep seeing this "safest" gun argument and I'm not sure proponents of that approach fully appreciate the 'double edge' it potentially represents. Let's say you win your point at SCOTUS regarding availability of the newest models in the interest of public safety. Could the State then come back and 'ban' older models as "unsafe," because the older models are not "as safe" as modern versions due to lacking 'modern technology?' Would we then end up down a similar rabbit hole to the one we are exploring now?

Bear in mind that I'm playing Devil's Advocate with all of this. In principle, I largely agree with you. What I'm pointing out is that the 'success' you posit is based on adopting a series of assumptions and premises which are not universally held or even 'absolutely true' in the strictest sense and they don't exist in a vacuum of legal legerdemain.
Reply With Quote
  #2594  
Old 08-17-2018, 12:20 PM
speedrrracer speedrrracer is offline
Veteran Member
 
Join Date: Dec 2011
Posts: 3,136
iTrader: 1 / 100%
Default

(part A, my response is too long for the forum filters)

Quote:
Originally Posted by TrappedinCalifornia View Post
The hurdle you have to get over isn't whether they specifically authorized this or that.
You're going to have to explain this to me, because it seems you are disagreeing with your own link. So from your link, #2, again:

"Second, if Congress authorized the states to pass legislation in a certain area despite the effect on interstate commerce, so long as the law does not violate other constitutional provisions, it will be upheld."

So this reads as though the state has to get over the hurdle that Congress has not authorized them to legislate in this area, which means the state is not operating in one of the areas identified as an "exception" to the rule. This isn't checkmate, but it means (to my untrained interpretation) that they can't escape this way.

Quote:
Just like States can impact interstate trade on firearms with age restrictions, so-called "assault weapons" restrictions, etc., you'd have to get past how they do not specifically prohibit them from doing so.
Do I? I wonder. I'm sure this would come up as a question during orals, and it might make me squirm, but I don't see where I'm required to justify every questionable law in existence because of the fact that CA has overstepped it's authority wrt microstamping. Again, if you show me Congressional authorization for per-state assault weapons bans or age restrictions, that's fine, but if you can't it just means those laws might be exposed to challenges under the dormant commerce clause, too. Or, perhaps not -- those laws have their own contexts which are no doubt involved and complicated, and over-generalized comparisons might be more of a strawman than sources of insight. To be clear, I'm not accusing you of trying to mis-lead this argument, just saying a challenge to law A doesn't necessarily mean I need to tackle every law in A's class.

But if they are or aren't, it doesn't mean the merit of my case is any greater or less -- those are separate laws, and I'm not challenging them, I'm challenging microstamping, and I still don't see any Congressional authorization, so the state gets no exception from my point of view.


Quote:
Remember, the 10th Amendment reads...
Well, you're definitely a Justice Thomas fan! Hey, no bigger fan of the 10A or Justice Thomas exists than me, but you and I both know we'll get no mileage from a 10A argument. Justice Scalia himself dismissed the 10A as a "truism". And I get it -- the 10A is too vague for a hard-core originalist to embrace. My personal preference is that SCOTUS would interpret it very widely and broadly and use to burn down entire fields of federal and state law, but they can't, they haven't and they won't.

Anyways, the 10A only deals with powers not delegated to the US, and commerce is definitely a delegated power.

Quote:
In other words, in not, specifically prohibiting it, the Government could argue that it is 'authorized' (by the Constitution - e.g., "the Federal Government") to do so. Or, as you suggest...
I think this is a step too far, but I don't have the cites to back up my conviction, so I apologize for the weak response. The Commerce Clause grants Congress the power over interstate commerce. So any state operating in this area is doing so unconstitutionally, unless, as discussed, Congress has delegated some authority to that state, which, as discussed, does not appear to be the case here.

Again, the existence of other state laws, which may have such authorization and certainly have different legal contexts, does not grant legitimacy to this one, which does not appear to have such authorization.

But to flesh out the point, Congress may well have expressed what could be considered "field preemption" over the entire area of interstate gun activity / law / commerce. The entire FFL structure, the AWB of 1994, GCA, NFA, etc, etc, shows Congress does exert control over this entire area, and so it might not be unreasonable to challenge all those laws you mentioned on field preemption grounds. I'm not doing that here, but it certainly means those laws have no endorsement from the dormant commerce clause.

Quote:
Bear in mind that, among the five you'd be depending on, there is a strong States' rights paradigm. Would there be sufficient desire to impinge upon the powers of the State to 'regulate public safety' in the interest of interstate commerce related to 'modern' (post-2013) handgun sales; especially when the Government's declared intent is to 'advance the technology' through legislation? Is it "nonexistent tech" or is it argued to be "too costly" from the manufacturers' perspective?
I don't think they're such great champions of states rights, if so there would be more 10A victories (or even one! How many SCOTUS decisions are "10A, law is null and void"? None, afaik), but even if they are, I don't see how this is stomping on any states rights. If CA really wants to advance the tech, they can pay for a limited production run of their wonder-tech pistols, and submit them for testing. Let the police carry them for a few months / years. Let SWAT use them in a few cities. Then let's look at the real-world results. That can be done with less than zero harm done to interstate commerce -- it will actually by definition enhance state commerce, since some company will have to build those guns, and there are no eligible mfrs in CA that I can think of. It will also do no harm to the 2A rights of CA citizens, unlike their existing law.

So there is a far more narrowly tailored option for the state to pursue, it has a positive, as opposed to a negative, impact on interstate commerce, CA loses nothing in its interest to advance the tech and there is no burden to the 2A. Hard to believe this option didn't occur to the legislature!


Quote:
Put another way, California is arguing that since the patents exist, the tech exists; i.e., simply because manufacturers haven't implemented it, doesn't mean the tech is 'nonexistent.' Thus, the intent of the legislation is to prompt manufacturers to adopt the technology as part of production. Remember...
So the originalists on the Court...are they going to care about "intent" in this case? I think they'll say, "Just the text, ma'am". And just because patents exist does not mean the burden on interstate commerce does not exist, although I see what you're saying about being careless with language about the product "existing".

Quote:
I think the "arguments in support of the law" to which they are referring is found here. (Note page 15 in particular.) It's not Peña, but it is directly related in terms of the existence of "microstamping technology."
I read page 15, and there is not a single mfr listed there. It's a bunch of orgs that have never manufactured a single pistol for the market, nor even attempted to. I can't see how an objective court would see them as any authority on what can be manufactured, let alone manufactured without great burden on interstate commerce. I see that as just some experts that would be countered by other experts with the exact opposite view. Roberts once joked, "Newton's 3rd Law: For every expert, there is an equal and opposite expert".

part B to follow:
__________________

Last edited by speedrrracer; 08-17-2018 at 12:25 PM..
Reply With Quote
  #2595  
Old 08-17-2018, 12:21 PM
speedrrracer speedrrracer is offline
Veteran Member
 
Join Date: Dec 2011
Posts: 3,136
iTrader: 1 / 100%
Default

part B:

Quote:
Bear in mind that the contention is that this is NOT a 'ban.' It is a legislative requirement to incorporate 'existing' technology in the interest of public safety. If the manufacturers refuse to incorporate such technology, that is, according to your own assertion... a voluntary act on the part of the manufacturer.
Not saying it's a ban (in spite of occasionally sloppy language, sorry), saying it's a burden on interstate commerce.

Quote:
The bottom line is that you're going to have to be careful in terms of argue the tech is "nonexistent." Is it 'nonexistent' because it doesn't exist or is it 'nonexistent' because manufacturers haven't implemented it?
Agreed and understood. I don't know anything about patent law, I understand there is supposed to be some correlation between a patent and utility in commerce, but I also think there is an understanding that the patent office is not rendering a legal verdict on that fact. Hence, the experts that will doubtless argue both ways on this issue.

Quote:
If you're going to argue interstate commerce, it's no longer about the specific product as a "Constitutional right," but whether that product complies with the laws of an individual State and whether the restrictions on the product are unrealistically prohibitive from an economic perspective.
I don't see that this is necessarily true, or maybe I just don't understand it. I'm not arguing that microstamping or any product is a Constitutional right, I'm arguing the microstamping law results in a burden on interstate commerce without Congressional approval. Cantaloupes comply with state laws, but in the case cited by sarabellum (Pike) AZ was guilty of violating the dormant commerce clause because the AZ law placed an undue burden on one single company doing interstate business with only one other company in 1 other state involving 1 process (packaging) and 1 product (cantaloupes). So that case suggests a victory doesn't require there be some sweepingly general principle which applies to all other interstate laws in the field of agriculture or all products grown for consumer consumption or anything so broad.

Pike suggests to me that if Glock / Sig / Fred's Lefty Derringers and Roadside Motel / Colt can demonstrate the microstamping law places an undue burden on interstate commerce for their unique situation, then the law dies a gruesome death. So if I need to justify the existence of pesticide laws in Maryland, you'll need to explain why, because they sure didn't bear that burden in Pike.

Quote:
Doesn't the standard you suggest potentially preclude virtually any 'new' technology?
I'm definitely not suggesting anything remotely resembling a standard. That's SCOTUS' function (which they often shirk, so hell no you ain't putting that on me). This law burdens me in interstate commerce just like Pike, here's my faithful beancounter showing the numbers, here's the stats showing the law doesn't benefit CA (unlike Pike, where there actually was some benefit to AZ) and is therefore disproportional to any benefit even if the impact on me is incidental, there are no Congressional authorizations nor exceptions for CA in this space, so I'd like my verdict, thankyouverymuch.

You got me to walk into a couple traps already, now that I have both legs in bear traps I think I'm learning

Quote:
If you conveniently ignore the Legislative intent, you might be correct. It bears repeating, California's argument is that the tech exists and they have a 'right' to promote its incorporation into products in the interest of public safety. It's been the manufacturers' choice not to incorporate it. Thus, any 'negative effect' is not a result of the law, but a result of noncompliance on the part of the manufacturers.
Intent again, not sure I understand how / why that matters before SCOTUS. Maybe it makes this approach a loser, IDK, hopefully you can point me where I can learn about that. But it seems there is a double-edged sword wrt intent, too. See if this makes sense, and call me when I go off the rails:

Yes, CA can argue the tech exists, and maybe they win that argument, but they can't dispute any counter that it's a huge burden to manufacture, extremely costly, time-consuming, unreliable, potentially destructive to other safety systems in the weapon, and just about any other claim the mfr wants to lump in, therefore a massive burden to interstate commerce.

OK, so maybe it's a balancing act -- what are the benefits to CA? Oh, none? Over how many years? Oh, that's because the mfrs decided not to implement it? They decided (intent) not to implement it because it's a huge burden on their ability to conduct interstate commerce, which makes this law unconstitutional. Just like in Pike, they decided not to package cantaloupes in AZ, (even though AZ decided it was in their state interest to require packaging in-state) because it was a burden on Pike's ability to conduct interstate commerce.

CA does have a right to act on their interests, but when those actions violate the law, they get slapped on the wrist. Additionally there are other ways to achieve their ends which lack that burden. They can claim the mfrs made a choice to not mfr the tech, but they can't support that claim, while I can prove the harm to my bottom line and interstate commerce, and that their law doesn't stand up to intermediate scrutiny and that they have no authority over interstate commerce in this area from Congress.

Quote:
Again, don't we already have that in relation to many products?
Maybe, maybe not, but even if we did, that doesn't mean Congress should allow additions to such a list of exceptions, especially when the addition brings harms to interstate commerce.

Quote:
Isn't that precisely where we've been headed in terms of the 2nd Amendment 'right to keep and bear' with the Supreme Court's resistance to new cases post- Heller and McDonald and the deliberate lower court "misreadings and misinterpretations" of both?
I agree it's an unfortunate side effect, but that hardly represents an endorsement of interstate commerce violations by Congress, and interstate commerce is still their domain, regardless of judicial recalcitrance wrt the 2A.

Quote:
I keep seeing this "safest" gun argument and I'm not sure proponents of that approach fully appreciate the 'double edge' it potentially represents. Let's say you win your point at SCOTUS regarding availability of the newest models in the interest of public safety. Could the State then come back and 'ban' older models as "unsafe," because the older models are not "as safe" as modern versions due to lacking 'modern technology?' Would we then end up down a similar rabbit hole to the one we are exploring now?
Seems entirely possible. Like I said before, safety is the best way to attack a civil right. Of course depending on the implementation of that law, it might represent an undue burden on interstate commerce, or it might lack rational basis, or it might not withstand intermediate scrutiny, or a million other things. If the law passes all those tests, then they're GTG, but just because they switch up a couple of words in a law doesn't free them from their legislative duties.

Quote:
Bear in mind that I'm playing Devil's Advocate with all of this. In principle, I largely agree with you. What I'm pointing out is that the 'success' you posit is based on adopting a series of assumptions and premises which are not universally held or even 'absolutely true' in the strictest sense and they don't exist in a vacuum of legal legerdemain.
With you 100%. Very much appreciate the indulgence of my ignorant little fantasy, and the valuable feedback. I tried not to posit too much success (just one little corner of one little sub-argument!), but I probably got sloppy with the verbiage more than a few times, and doubtless crossed some inappropriate lines in terms of claiming territory I didn't win.

The biggest realization for me is that I lack even the rudimentary chops to construct any kind of meaningful legal path. If an accurate / applicable cite represents a step in a certain direction, I can't walk, and not being able to walk sucks. Frustrating, because that's how it's best to communicate in this forum. Hopefully in time...
__________________

Last edited by speedrrracer; 08-17-2018 at 12:28 PM..
Reply With Quote
  #2596  
Old 08-17-2018, 2:00 PM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 649
iTrader: 0 / 0%
Default

Response to "A"

Quote:
Originally Posted by speedrrracer View Post
You're going to have to explain this to me, because it seems you are disagreeing with your own link.
Think about it in terms of how we discuss DOJ not being willing to acknowledge whether something is or is not 'legal.' It's one of those 'twist your mind around it' propositions. If not, specifically prohibited, then Government could argue that it is 'authorized' to do so based on the language in the 10th Amendment...

Quote:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
If it's not specifically delegated to the Federal Government and not prohibited to the States, then it is within the States' power (or the People's).

Quote:
Originally Posted by speedrrracer
...if you show me Congressional authorization for per-state assault weapons bans or age restrictions, that's fine, but if you can't...
Remember, in such cases, the burden of proof is on the plaintiff. You're still not thinking in terms of what is talked about regularly on this board in terms of whether a law says something is legal. Laws generally don't state what is legal, but declare what is illegal. SCOTUS has upheld so-called "assault weapons" bans, etc. Thus, they are presumptively legal/Constitutional until Congress rewrites the Laws or SCOTUS declares otherwise. In a similar manner, what has not been 'prohibited' to the States may be assumed to be presumptively 'authorized' until/unless Congress legislates and/or SCOTUS determines otherwise.

Since the burden of proof would be on you to prove they are prohibited (not authorized), you're going to have to be prepared to demonstrate why State legislatures are not authorized to impose certain restrictions on Interstate Commerce in relation to the product in question (firearms) when they already impose some form of restriction(s) on the same product(s).

So... How is a State authorized to 'limit' the product is one or more ways, but not authorized to 'limit' it in this, specific way?

Quote:
Originally Posted by speedrrracer
Well, you're definitely a Justice Thomas fan!
It's not just Thomas. Roberts and Alito (two others you're depending on) are also established as States' rights proponents.

Quote:
Originally Posted by speedrrracer
Anyways, the 10A only deals with powers not delegated to the US, and commerce is definitely a delegated power.
But, you have a two-part test and exceptions to account for. Remember, the paradigm is that if the Federal Government is not specifically given power over something, it assumed not to have power over that something and it reverts to the States or the People. While the Feds have power over Interstate Commerce, that power has long been tempered by a State's right to control public health and safety. In other words, the Federal Government's power over Interstate Commerce is not as 'absolute' as you are projecting.

In U.S. v Rybar (1996), a 3rd Circuit case, Alito was a judge and dissented. In that case, it was noted...

Quote:
...Needless to say, the Commerce Clause does not prevent the states from regulating machine gun possession, as all of the jurisdictions within our circuit have done... In Lopez, the Supreme Court identified “three broad categories” of legislation permitted under the Commerce Clause:  (1) regulation of “the use of the channels of interstate commerce,” (2) regulation and protection of “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities,” and (3) regulation of “activities that substantially affect interstate commerce... Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals, or welfare, even though the state has not sought to regulate their use... If there is any sort of interstate market for a commodity-and I think that it is safe to assume that there is some sort of interstate market for practically everything-then the purely intrastate possession of that item will have an effect on that market, and outlawing private possession of the item will presumably have a substantial effect.   Consequently, the majority's theory leads to the conclusion that Congress may ban the purely intrastate possession of just about anything.   But if Lopez means anything, it is that Congress's power under the Commerce Clause must have some limits... In order to bring this case within the third Lopez category, it is not enough to observe that violent criminals, racketeers, and drug traffickers occasionally use machine guns in committing their crimes and that these crimes have interstate effects.   Rather, there must be a reasonable basis for concluding that the regulated activity (the purely intrastate possession of machine guns) facilitates the commission of these crimes to such a degree as to have a substantial effect on interstate commerce... I take this theory very seriously, but my problem with it is that it rests on an empirical proposition for which neither Congress, the Executive (in the form of the government lawyers who briefed and argued this case), nor the majority has adduced any appreciable empirical proof...
There's more in that decision you might find... interesting. But, the point is, observers came away with the perception that Alito clearly feels there are limits to Congressional power under the Commerce Clause. Yet, you are simultaneously arguing that States cannot negatively impact Interstate Commerce while Alito says the Federal Government's ability to impact a State's ability to regulate a product (in this case, 'machine guns') via its authority over Interstate Commerce is limited.

Bear in mind the argument was that, in Rybar, the issue was intrastate, not interstate. The point, however, is that Alito sees limits to Federal Power via Interstate Commerce when it comes to States regulating public safety within the State's borders. Now, add back in the fact that Thomas does not believe the Dormant Commerce Clause is based in the Constitution.

Thus far, you're going to have to demonstrate that it is a substantive issue of negative impact on Interstate Commerce resulting from regulation and not recalcitrance on the part of the manufacturers, while depending on at least two Justices who have issues with the Dormant Commerce Clause and the scope of the Commerce Clause; particularly when it comes to predominantly intrastate matters and if the State can demonstrate it is a safety issue within their boundaries, the Commerce Clause should not, of necessity, prevail. In a concise phrasing... the case showed Alito's recognition that Congress' constitutional power to regulate interstate commerce is not a license "to regulate anything and everything." Add to this that SCOTUS has been narrowing the scope of Federal power under the Commerce Clause in general.

Quote:
Originally Posted by speedrrracer
The entire FFL structure, the AWB of 1994, GCA, NFA, etc, etc, shows Congress does exert control over this entire area, and so it might not be unreasonable to challenge all those laws you mentioned on field preemption grounds. I'm not doing that here, but it certainly means those laws have no endorsement from the dormant commerce clause.
Not control over the ENTIRE area. Some States still allow PPT without involvement of FFL's. The 1994 AWB no longer exists, though State bans remain in place. None of those you cite controls certain specifics, age restrictions being a recent example. (Another is the issue of black powder firearms. In this thread, the fact that Ohio recognizes them as 'modern firearms' when the Federal Government does not opens possibilities.) In other words, you are trying to establish that the Federal Government controls all aspects of firearms commerce when it does not.

Quote:
Originally Posted by speedrrracer
I don't think they're such great champions of states rights, if so there would be more 10A victories (or even one! How many SCOTUS decisions are "10A, law is null and void"? None, afaik), but even if they are, I don't see how this is stomping on any states rights.
That's whistling past the graveyard. "I don't know of any, so there must not be any, but if there are...???"

Quote:
Originally Posted by speedrrracer
If CA really wants to advance the tech, they can pay for a limited production run of their wonder-tech pistols, and submit them for testing.
This is a fundamental misunderstanding of the Legislative intent. Think of it this way...

Henry Ford didn't invent the automobile. The technology already existed. What Ford did was invent the 'assembly line' process for producing them. That is precisely what the Legislative intent is here. They are declaring that the technology exists. What they are legislating is that the manufacturers must now become "Henry Ford" in terms of creating a process by which the technology can be used in mass production. The resultant benefits to the State would be the potential of increased crime solving, etc. (enhanced public safety) and the usual economic benefits of economies of scale and access to markets being the incentive for the manufacturers to do so.

You and others keep wanting the State to 'prove' microstamping works. The problem is, it demonstrably does. Where it 'doesn't work' is in a mass production context. How long it would work in the context of swapping firing pins, leaving readable markings, etc. is still, in my mind, a bit of a debate; but, testing has shown it to work for "X" number of rounds (at least several hundred).

What you want is for the State to pay for, develop, and test microstamping technology. Then you're okay with manufacturers developing a process for mass production. The problem is the tech already exists. The State is now legislating that the manufacturers must develop a process for mass production or they are precluded from selling firearms produced since 2013. Are you now going to shift your stance to declare the State must ALSO pay for, develop, and test the 'mass production technology' or it is too negative an impact on Interstate Commerce for the Courts to sustain? How is that going to play in terms of "free market economics" if you're demanding the Government must pay for, develop, and test both the technology and the means of production before private enterprise can be required to utilize it?

Quote:
Originally Posted by speedrrracer
Hard to believe this option didn't occur to the legislature!
What you are asking for is the State to provide evidence of their conclusion for enhancement of public safety, not evidence that the technology exists. This is at odds with what the State Supreme Court has declared.

Quote:
Originally Posted by speedrrracer
I read page 15, and there is not a single mfr listed there. It's a bunch of orgs that have never manufactured a single pistol for the market, nor even attempted to.
Again, you have to differentiate based on what 'technology' you are referencing. The studies cited on page 15 isn't focused on the 'technology of mass production.' Those studies demonstrate that microstamping technology exists, is viable (to whatever extent... 2,500 cases?), and, therefore, can serve as a 'crime-solving tool.'

Quote:
Originally Posted by speedrrracer
I can't see how an objective court would see them as any authority on what can be manufactured, let alone manufactured without great burden on interstate commerce. I see that as just some experts that would be countered by other experts with the exact opposite view. Roberts once joked, "Newton's 3rd Law: For every expert, there is an equal and opposite expert".
Which is precisely the argument presented by the State Supreme Court and the 9th in deferring to the Legislature as better suited in terms of the research and the determinations derived therefrom.

Last edited by TrappedinCalifornia; 08-17-2018 at 6:08 PM.. Reason: For clarity, I hope
Reply With Quote
  #2597  
Old 08-17-2018, 3:01 PM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 649
iTrader: 0 / 0%
Default

Response to "B"

Quote:
Originally Posted by speedrrracer View Post
...saying it's a burden on interstate commerce.
Bear in mind that you have to demonstrate, not simply say, it. Likewise, you have to show that it is not only a substantial burden, but that the burden outweighs the public safety benefits.

Quote:
Originally Posted by speedrrracer
I don't see that this is necessarily true, or maybe I just don't understand it.
Go back and read the summary provided for the 9th's Panel decision...

Quote:
...The panel held that it did not need to reach the question of whether the challenged provisions fell within the scope of the Second Amendment’s right to bear arms because, even assuming coverage, the provisions passed constitutional muster. Applying intermediate scrutiny, the panel held that the Act only regulates commercial sales, not possession, and does so in a way that does not impose a substantial burden on purchasers. The panel held that the requirements for a chamber load indicator and a magazine detachment mechanism reasonably fit with California’s interest in public safety. The panel further held that California had met its burden of showing that the microstamping requirement was reasonably tailored to address the substantial problem of untraceable bullets at crime scenes and the value of a reasonable means of identification. The panel rejected plaintiffs’ claim that they have a constitutional right to purchase a particular handgun and their claim that the provisions violate the Equal Protection Clause...
Quote:
Originally Posted by speedrrracer
I'm not arguing that microstamping or any product is a Constitutional right, I'm arguing the microstamping law results in a burden on interstate commerce without Congressional approval.
Which removes the issue of Constitutional rights to own handguns produced post-2013, obviating issues surrounding the 2nd Amendment. But, you want to 'get around' Thomas' distaste for the Dormant Commerce Clause by...

Quote:
Originally Posted by speedrrracer
For Thomas, we can play the intermediate scrutiny card, which kinda lives in the "incidental burden" portion discussed above. The law burdens conduct under the 2A (I can't get the safest, most reliable guns with the latest features), yet provides zero benefit to the state (demonstrably true, again, since there are no microstamped guns in existence).
In other words, you want to have your cake and eat it too. You want to base your argument on the Dormant Commerce Clause, relying on the burden to Interstate Commerce, but then have Thomas (and others?) concur based on a totally separate challenge which attempts to 'cast doubt on doubt on laws imposing conditions and qualifications on the commercial sale of arms,' something even Heller avoided?

Quote:
Originally Posted by speedrrracer
So if I need to justify the existence of pesticide laws in Maryland, you'll need to explain why, because they sure didn't bear that burden in Pike.
What you have to explain is why a State can regulate pesticides in the interest of public safety, but cannot regulate firearms in the interest of public safety; the former, presumably, not being a burden on Interstate Commerce and the latter, presumably, being a burden on Interstate Commerce.

Quote:
Originally Posted by speedrrracer
I'm definitely not suggesting anything remotely resembling a standard.
Except, in the decision, SCOTUS will, to one degree or another, be creating a or positing affirmation for an existing standard. Thus, they are going to be looking to have you delimit what you consider to be 'acceptable' or 'unacceptable' in terms of what constitutes a 'burden;' meaning you will hae to cite some basis or standard for that acceptability. It's not that they will necessarily use your conception, but they will be interested to see if your definition comports with what the Court has declared in the past and whether your argument fits within those parameters or looks to 'expand' things in some manner.

You have to be careful here. Are you arguing something that SCOTUS can deem 'reasonable' or are you proposing what could be perceived as a 'radical' realignment of existing standards? This is going to be particularly important in, what is likely to be, a 5-4 decision. You can't 'lose' a Justice because they perceive a decision as tantamount to 'creating new public policy.' (Think Roberts and his agenda of protecting the image of the Court.)

Quote:
Originally Posted by speedrrracer
Intent again, not sure I understand how / why that matters before SCOTUS.
Legislative intent is, or can be, a very crucial component in a Court's interpretation of any Law. As an example, if you read Heller, the great bulk of the decision is Scalia's interpretation of the intent of the Founders.

Quote:
Originally Posted by speedrrracer
OK, so maybe it's a balancing act...
Therein lies the key. Does the 'burden' you can demonstrate outweigh the Government's interest (benefit) or is it the other way around? Is the initial investment the manufacturers must bear in implementing the technology for mass production supplanted or superseded by the ROI for those manufacturers and the benefits (or lack thereof) of enhancement of public safety?

It's not just about whether it is an initial (and 'temporary') burden on the manufacturers, but whether it constitutes an ongoing and unsustainable one.

Quote:
Originally Posted by speedrrracer
Maybe, maybe not, but even if we did, that doesn't mean Congress should allow additions to such a list of exceptions, especially when the addition brings harms to interstate commerce.
But, the State is not arguing that they are 'making an addition' to the exceptions. Their claim is that they are operating within existing exceptions.

Quote:
Originally Posted by speedrrracer
...it might represent an undue burden on interstate commerce, or it might lack rational basis, or it might not withstand intermediate scrutiny, or a million other things.
That's generally referred to as throwing everything against the wall and seeing what sticks. You'll need to be more 'focused' than that.

Quote:
Originally Posted by speedrrracer
...just because they switch up a couple of words in a law doesn't free them from their legislative duties.
Actually, changing the words to comply with Constitutionality is the essence of their Legislative duties when it comes to "lawmaking." In fact, many, many decisions issued by the Courts are based on the language used and a simple alteration being all that is necessary. For a little perspective, think about the difference "fine" and "tax" made when it came to Obamacare.

Quote:
Originally Posted by speedrrracer
The biggest realization for me is that I lack even the rudimentary chops to construct any kind of meaningful legal path. If an accurate / applicable cite represents a step in a certain direction, I can't walk, and not being able to walk sucks. Frustrating, because that's how it's best to communicate in this forum. Hopefully in time...
Many 'legal experts' feel the same way, yet continue to make their living in that forum. It's why lawyers need lawyers. It's why you can put 10 lawyers in a room and they will produce 100 opinions on the same issue.

It's also why the People have become increasingly disenchanted with the "System."
Reply With Quote
  #2598  
Old 08-17-2018, 7:18 PM
scarbubu scarbubu is offline
Junior Member
 
Join Date: Aug 2016
Posts: 66
iTrader: 2 / 100%
Default

A quick observation that I'm not sure anyone has argued or pointed out...

The safety roster exists for the supposed purpose of public safety. Specifically to keep "unsafe" firearms out of consumers hands. Fair enough...

With that said, how does micro stamping make a firearm safer?!? Microstamping is an investigative tool "after the fact" for law enforcement.
Reply With Quote
  #2599  
Old 08-17-2018, 7:32 PM
roostersgt roostersgt is offline
Senior Member
 
Join Date: Dec 2012
Location: 5200'
Posts: 1,744
iTrader: 3 / 100%
Default

The overwhelming vast majority of firearms used in crimes are STOLEN. The micro BS would just give some detective a starting point that would more than likely lead them to a burglary victim. Whoopie! Ejected brass contains ejector marks that could be matched to a specific firearm, if the firearm was discovered before too many additional rounds were fired. Micro stamping as prescribed by our states idiots, is impossible at this time, much like a truck getting 56mpg. Legislate it and it will be so, seems to be their motto. I hate the idiot democrats running our state. I really really hate them.
Reply With Quote
  #2600  
Old 08-18-2018, 1:28 PM
speedrrracer speedrrracer is offline
Veteran Member
 
Join Date: Dec 2011
Posts: 3,136
iTrader: 1 / 100%
Default

let's see if I can fit everything in....part A

Quote:
Originally Posted by TrappedinCalifornia View Post
So... How is a State authorized to 'limit' the product is one or more ways, but not authorized to 'limit' it in this, specific way?
I thought I answered that; maybe it was a crappy answer? A re-phrase: When it comes to doing harm to interstate commerce, CA can't do whatever it wants to do. In Pike, AZ was well within its interests to want to empower its produce, packagers and growers, SCOTUS was fully on board with that part. But there was harm to interstate commerce, so in spite of such wonderful (and SCOTUS-approved) intentions, AZ law got flushed down the toilet. That's the only target I'm going for here. Keeping it simple and small.

Quote:
While the Feds have power over Interstate Commerce, that power has long been tempered by a State's right to control public health and safety. In other words, the Federal Government's power over Interstate Commerce is not as 'absolute' as you are projecting.
Probably true, but it's sufficiently absolute for this application; I'm not trying to say that states can't put criminals in jail because it inhibits their ability to generate federally-taxable incomes or anything extreme. These guns travel, are transported and are for sale across state lines and by interstate actors, the guns use the Congressionally-controlled channels and instrumentalities of interstate commerce, and their commercial activity has a substantial effect on interstate commerce. This is about as cut-and-dried a case of interstate commerce as it gets -- it's even ticks the "commerce with foreign nations" box since there are many guns "banned" (just having fun) from entering CA by microstamping which are imported from other nations. If CA's case boils down to "Congress' authority over interstate commerce is subject to our right to control public health and safety within CA" then I'm happy putting this case in the hands of the Justices right freaking now, because those are about the best odds I can hope for. I'll still have to think of something for Thomas.

No one is questioning a State's right to control that state's public health and safety, but that doesn't give CA authority over interstate commerce or an exception to harm it. The state can thrash and squirm and rage against the bars of it's cage all it wants, but it is trapped in it's domain, and can't come out in the absence of Congressional permission to do so.

From US v Darby:
Quote:
The power of Congress over interstate commerce "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution." Gibbons v. Ogden, supra, 22 U. S. 196. That power can neither be enlarged nor diminished by the exercise or nonexercise of state power. Kentucky Whip & Collar Co. v. Illinois Central R. Co.,
OK, feeling the power of the omnipotent Commerce Clause...Darby goes on to say:

Quote:
Our conclusion is unaffected by the Tenth Amendment. which provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. See e.g., II Elliot's Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, §§ 1907-1908.
And from your link, US v Rybar:
Quote:
As Justice Kennedy observed in his concurrence in Lopez, while Congress enjoys “extensive power and ample discretion to determine [the] appropriate exercise [of its Commerce Clause authority],” the courts, for their part, must observe “great restraint” before determining “that the Clause is insufficient to support an exercise of the national power.”
Yeah, not a lot of red lights on the Commerce Clause Highway. SCOTUS is falling all over itself to allow Congress to do whatever it wants.

Your 2-part test, part 1:
Quote:
Our examination of the scope of legislative prerogative respecting exercise of the Commerce Clause power is twofold, and “relatively narrow.” Hodel v. Virginia Surface Mining & Reclamation ***'n, Inc., 452 U.S. 264, 276, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1 (1981). We must first determine whether Congress could rationally conclude that the regulated activity substantially affects interstate commerce.
I'm going with "yes", call me crazy

part 2:
Quote:
If we decide that it could, “the only remaining question for judicial inquiry is whether ‘the means chosen by [Congress] [are] reasonably adapted to the end permitted by the Constitution.’ ”  Virginia Surface Mining, 452 U.S. at 276, 101 S.Ct. at 2360 (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262, 85 S.Ct. 348, 360, 13 L.Ed.2d 258 (1964));  accord Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 17, 110 S.Ct. 914, 924-25, 108 L.Ed.2d 1 (1990).
And the "means" is to prevent CA from harming interstate commerce by eliminating this silly law, which our beancounters have proven harms interstate commerce. Is that "reasonably adapted" to the "end permitted by the Constitution"? Not much effort to arrive at a "It is certainly not unreasonably adapated, so we'll go with yes".

And so we see why it's almost impossible for the Commerce Clause to lose, at anything. All that's needed is rational basis (and we know from the 9th how that just means, "Whatever they think is fine with us, you can't challenge anything they choose to pretend to believe"). Sure, you can't use the Commerce Clause to force puppies to become kittens but within the world of commerce, you have to get pretty ridiculous before you encounter any limit. Lopez was a friggin gun on a schoolyard, wtf does that have to do with commerce? And that case made it to SCOTUS? Speaks about how ridiculously far you can go with it; we all know about Wickard.

Quote:
In U.S. v Rybar (1996), a 3rd Circuit case, Alito was a judge and dissented. In that case, it was noted...
That case, to my untrained eye, doesn't even seem to come from the same planet as what I'm proposing. Alito didn't even seem to have a problem with the law, he was more whining about how Congress didn't justify it with sufficient findings, and if they had, he would have been totally on board. I have no worries on how Alito would vote in my imaginary case, especially since in this case, it is CA that has (imo) insufficient findings to support their conclusions. I don't know if he was championing the state, but maybe championing informed legislation, whatever the source.

Quote:
In other words, you are trying to establish that the Federal Government controls all aspects of firearms commerce when it does not.
First, I'm not. Again, field preemption isn't part of this case, but as a fun diversion, it might have some merit to look into, and if CA brought it up, I do believe it favors my side more than theirs. From your link: "Field preemption stands for the proposition that Congress has so heavily regulated an area of law such that it is implicit that Congress has chosen to preempt state law on the subject matter. " So it does not say that the sum of all Congressional laws in an area must amount to a total, present ownership of the entire possible legal thought-space in order for field preemption to exist. That would be redundant. Your link seems to say if there has been / is a lots of laws in lots of areas in this subject, perhaps that indicates Congress wants to own the entire area, and not share it, and thus field preemption would then blanket the entire thought-space, even though the laws themselves did not.

Quote:
This is a fundamental misunderstanding of the Legislative intent. Think of it this way...

Henry Ford didn't invent the automobile. The technology already existed. What Ford did was invent the 'assembly line' process for producing them. That is precisely what the Legislative intent is here. They are declaring that the technology exists. What they are legislating is that the manufacturers must now become "Henry Ford" in terms of creating a process by which the technology can be used in mass production. The resultant benefits to the State would be the potential of increased crime solving, etc. (enhanced public safety) and the usual economic benefits of economies of scale and access to markets being the incentive for the manufacturers to do so.

You and others keep wanting the State to 'prove' microstamping works. The problem is, it demonstrably does. Where it 'doesn't work' is in a mass production context.
Some of that "impossibility" here...they are legislating we must mass produce, but it doesn't work in mass production...

Quote:
Are you now going to shift your stance to declare the State must ALSO pay for, develop, and test the 'mass production technology' or it is too negative an impact on Interstate Commerce for the Courts to sustain?
Thanks to your help, I think my refined stance should be "this law is an undue burden on interstate commerce" and nothing more. All I'm saying is that CA would have to pay for, develop and test the mass production tech in a reasonably cost-effective way in order to prove me wrong when I claim that their tech can't be mass produced without an undue burden on interstate commerce. They can't / won't, so it's a non-starter. I'm comparing CA's law to saying, "Yay, you got fusion in a magnetic bottle for a billionth of a second under lab conditions, now make sure every Ford / Chevy / Kia has a Mr Fusion engine instead of gasoline from this moment on".

Even if their experiment is legit, I don't care, it's a burden in the context of commerce, they don't get to do that, so they lose.

Quote:
Again, you have to differentiate based on what 'technology' you are referencing. The studies cited on page 15 isn't focused on the 'technology of mass production.' Those studies demonstrate that microstamping technology exists, is viable (to whatever extent... 2,500 cases?), and, therefore, can serve as a 'crime-solving tool.'
So the tech can exist in some lab somewhere, can't be mass produced, yet therefore it's a crime-solving tool because we say so. And it is totally allowed to burden interstate commerce because why?
__________________

Last edited by speedrrracer; 08-18-2018 at 4:46 PM..
Reply With Quote
Reply

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump



All times are GMT -8. The time now is 1:26 AM.




Powered by vBulletin® Version 3.8.9
Copyright ©2000 - 2018, vBulletin Solutions, Inc.
Proudly hosted by GeoVario the Premier 2A host.
Calguns.net, the 'Calguns' name and all associated variants and logos are ® Trademark and © Copyright 2002-2018, Calguns.net an Incorporated Company All Rights Reserved.
Calguns.net and The Calguns Foundation have no affiliation and are in no way related to each other.
All opinions, statements and remarks made by Calguns.net on this web site and elsewhere are solely attributable to Calguns.net.