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

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  #241  
Old 10-16-2017, 2:02 PM
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Originally Posted by sarabellum View Post
KC Brown, you posed the correct questions. Correct "zoning laws" is not an analysis.

First, the fundamentals of constitutional law applied to businesses are the dormant commerce clause, 1st Amendment commercial speech, 14th Amendment right to a livelihood, etc. The right to contract is considered by the US Supreme Court to be a dead letter.

The First Amended Complaint did not plead these theories of law, perfectly appropriate to a business. Rather, the plaintiffs' complaint plead two causes of action under the Second Amendment and two causes of action under the Equal Protection Clause of the XIV Am. US Constit.

To be fair to the Michel firm, they were retained to bring a 2nd Amendment case, and they did. The 2nd Amendment doctrine is in its infancy. The Plaintiffs in the Teixeira case engaged in experimental law.

Second, on 09/09/13, the District Court order dismissed the case under FRCP 12(b)(6) failure to state a claim, i.e. the pleadings are defective such that the case may resolved without reaching the merits. We have ad nauseum pointed out that the Supreme Court in Heller carved out exceptions to the 2nd Amendment that consume the entire right to bear arms. The District Court precisely and easily cited Heller for the proposition that the states may regulate the possession and sale of firearms:
The first step of the analysis is dispositive in this case: under the Supreme Court‟s decisions in Heller and McDonald, the Ordinance is presumptively lawful. Critically, as previously noted, the Supreme Court has cautioned that nothing in the Heller opinion “should be taken to cast doubt on . . . 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.” Heller, 554 U.S. at 626-27. The Supreme Court explained that its list of “presumptively lawful regulatory measures” was “not [] exhaustive.” Id. at 627 n.26.
09/09/13 Order granting D motion to dismiss, pp. 9: 14-22

The Heller decision makes clear that state laws controlling the sale of firearms are presumptively valid. Id. The language from the 09/09/13 citing to Heller is dispositive and predicatable.

Third, on 05/16/16 in Teixeira, the 3 judge panel decision from the Ninth Circuit confronted the all consuming exception from Heller, correctly asked the logical question of "how are citizens to exercise a fundamental right to own something if they cannot legally buy it?" by turning to another classic case Carey and the law prohibiting contraceptives, "“[l]imiting the distribution of nonprescription contraceptives to licensed pharmacists clearly imposes a significant burden on the right of the individuals to use contraceptives. . ." pp. 16.

However, 3 judge panel in Teixeira turned to non-judicial support, "The historical record indicates that Americans continued to believe that such right included the freedom to purchase and to sell weapons. In 1793, Thomas Jefferson noted that “[o]ur citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.” pp. 16.

Once the panel determined that a fundamental right to sell and buy firearms exists, then it turned fatally to analyzing what level of scrutiny should apply (even though Heller indicated that all regulations are presumptively valid).

The 3 judge panel concluded that "The district court erroneously believed that the Ordinance fell outside the scope of the Second Amendment and thus warranted no more than rational basis review" (pp. 28) and that, "the intermediate scrutiny standard [applies], all forms of the standard require (1) the government’s stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged TEIXEIRA V. 28 COUNTY OF ALAMEDA regulation and the asserted objective.” Id. 27-28. The 3 judge panel court remanded the matter for the trial court to apply intermediate scrutiny:
Alameda County’s Ordinance may very well be permissible. Thus far, however, the County has failed to justify the burden it has placed on the
right of law-abiding citizens to purchase guns. The Second Amendment requires something more rigorous than the unsubstantiated assertions offered to the district court.

Consequently, we reverse the dismissal of Teixeira’s well pled
Second Amendment claims and remand for the district court to subject Alameda County’s 500-foot rule to the proper level of scrutiny.
Id. pp. 34.

The level of scrutiny is a problem since the Heller decision's "presumptively" valid language is lower than rational basis shifting the burden entirely to the plaintiff.

The 10/10/17 En Banc decision reversed explaining, "Our conclusion that the Second Amendment does not confer a freestanding right to sell firearms is fully consistent with Heller, which closely examined the historical record and concluded that, at its core, the Second Amendment protects defense of hearth and home.” 554 U.S. at 635," i.e. the right to sell arms is not a fundamental right. Pp. 35. On the other hand, a law prohibiting entirely prohibiting sales would be unconstitutional, "would be untenable under Heller,” id., because a total prohibition would severely limit the ability of citizens to acquire firearms." Id. pp. 37. However, because the Alameda County ordinance applies to the unincorporated areas of the county and not to cities, where persons can currently buy firearms, citizens are only incidentally inconvenienced, "Marzzarella did not consider a situation in which the right of citizens to acquire and keep arms was not significantly impaired, yet commercial retailers were claiming an independent right to engage in sales." Id. at 37.

With regard to a 1st Amendment claim (perhaps in the opposition to the FRCP 12(b)(6) motion the Plaintiffs offered to amend to add a 1st Am claim), the en banc order explained that unlike selling of books and newspapers communicating a point of view, the selling of arms does not implicate the 1st Amendment, "Alameda County’s Zoning Ordinance, to the extent it simply limits a proprietor’s ability to open a new gun
store, therefore does not burden conduct falling within the Amendment’s scope . . ." i.e. persons can buy an existing gun business.

Heller is the problem with its expansive exception concluding all regulation of arms by the states to be presumptively valid.

The Teixeira case was a valuable effort because it forced the development of the contours of 2nd Am. doctrine in the 9th Circuit.
IANAL but the above sounds curious when quoting Heller (which not only established a fundamental enumerated right but STRUCK DOWN A REGULATION that trampled that right). So much for the theory that all government has to do is say "we are regulating" and its presumptively legal.
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  #242  
Old 10-16-2017, 4:34 PM
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Originally Posted by Hoop View Post
I had a back and forth with a liberal lawyer friend of mine (who is also a judge) about this and he said something along the lines of "why is it a big deal if they have to drive 3-4hrs to buy a gun?". When I asked whether or not driving 3-4hrs to get an abortion would be feasible he replied that it was "different". His mentality seems to be the prevailing mood for justices out here.
Yup, and they'll point to the case law that treats it differently as a proof that "it's different." They also avoid the true question: "should it be different?"

The only way to battle this is to stack up the courts with "it's different" types who are on our side.
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  #243  
Old 10-16-2017, 6:37 PM
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Originally Posted by kcbrown View Post
There can be no doubt that evidence the regulations are “longstanding” is required to claim Heller’s carve-out for “presumptively lawful” “conditions and qualifications on the commercial sale of arms.” In the above-quoted passage from Heller, the object of the preposition “on” in the phrase “cast doubt on” is a disjunctive parallel construction: “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.” Thus, under the series-qualifier canon, the adjective “longstanding” applies to each phrase within the parallelism—including “laws imposing conditions and qualifications on the commercial sale of arms.” See Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147–151 (West 2012).
It's powerful .. Consider Scalia wrote Heller, and Scalia wrote the book which
Judge Bea used to better understand Heller, I don't think it gets much better then that. There is a lot of good stuff in Bea's dissent.
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  #244  
Old 10-19-2017, 2:53 PM
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The problem with these types of cases is what we knew from the beginning: judges can make each side fit their narrative, so whoever has the numbers wins. No different than stacking the Supreme Court.

Back to this case, sure there are "holes" in the plaintiff's argument, but the holes are there only because the court has adopted a framework that creates these holes so the defendants can win. Claiming that the "holes" are somehow fundamental and not a consequence of the arbitrary nature of the court is disingenuous. There were holes in the desegregation arguments and the courts upheld it. Until they didn't.

The only good coming out of these types of decisions is the understanding that this has nothing to do with the law and everything to do with the ideology. Put enough judges on a court and all of this is reversed. The battle is no longer to make a case in the court, but to make the court to fit the ideology.

Can't wait to see "living constitution" judges and justices appointed. No, not the hard left ideologues, but the far right ideologues. Staying true to the principles has only hurt us in the past. Time to start playing the big boys' game. Please proceed, Mr President...
I want my living constitution to find a need to arm every eligible 18 year old with an m4 with optics and m203 with a few cases of ammo for each. The high achievers get stingers.
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Originally Posted by kcbrown View Post
Yes. But the real problem isn't so much that the judges can make each side fit their narrative, but that they do.

Which is to say, the claim is that judges are supposed to be objective arbiters of law. That is a direct contradiction to the actions of judges who make their decisions fit their preferred narrative. And yet, the latter is what happens.




So it seems.

Of course, you realize that in doing that, we will lose in the end. Not necessarily because the resulting judges won't protect the liberties that we want protected right now. No, it's because they won't protect the liberties that we may want protected later, precisely because they won't stay true to the foundational principles.

It is only if their ideology is the protection of liberty that we will see them protect liberty in general. Absent that, we will continue to see liberty destroyed in front of us, with even "our" judges looking on approvingly.
That's already the situation.

The only question is do we fight the way we have a fighting chance of preserving/expanding/winning in our lifetimes, or do we cede the battlefield for fear of fighting?

The cat is already out of the bag. The enemy has already revealed themselves and their tactics. And, because of case law, literally the fact that it has been done before makes it a valid technique.

Given the strongly anti-liberty trends we had in cities, urbanization, and globalization, mere "principles" and fighting a principled war based off a "leave me alone" perspective is a doomed ideology, allowing you to scream about your principles as everything important the principles would touch is stripped from you, defiled, and made a memory.

But being able to claim you stood for your principles in the government-owned bar after the dust settles is important, as everyone struggles to get their government-issued surveillance device to analyze your voice stress to see if you are actually advocating anything besides useless puffery.

The judicial cat is out of the bag. We need to nuke the blue slips and use trump to ram through as many judges as possible.

That's the entirety of the game. I'm not a fan of it, but as we've seen legal decisions have a trickle down cultural effect as well that is a force multiplier. If we refuse to fight this way, we admit we are NEVER getting our cake back.
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  #245  
Old 10-19-2017, 9:10 PM
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Originally Posted by lowimpactuser View Post
The cat is already out of the bag. The enemy has already revealed themselves and their tactics. And, because of case law, literally the fact that it has been done before makes it a valid technique.

Given the strongly anti-liberty trends we had in cities, urbanization, and globalization, mere "principles" and fighting a principled war based off a "leave me alone" perspective is a doomed ideology, allowing you to scream about your principles as everything important the principles would touch is stripped from you, defiled, and made a memory.

But being able to claim you stood for your principles in the government-owned bar after the dust settles is important, as everyone struggles to get their government-issued surveillance device to analyze your voice stress to see if you are actually advocating anything besides useless puffery.

The judicial cat is out of the bag. We need to nuke the blue slips and use trump to ram through as many judges as possible.

That's the entirety of the game. I'm not a fan of it, but as we've seen legal decisions have a trickle down cultural effect as well that is a force multiplier. If we refuse to fight this way, we admit we are NEVER getting our cake back.
I don't disagree with you at all. Frankly, the real choice is between "living constitution" types who support the rights and liberties we value, and ones who want to see them destroyed. People who really do adhere to the principles of liberty simply aren't in the cards for this.

And it's quite clear that when the choice is that, you go with the "living constitution" type who agrees with you.

The point wasn't to suggest a better alternative. There is no better alternative. The point was only to set the proper expectations of what will happen if we get what we choose.
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  #246  
Old 10-19-2017, 10:31 PM
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Originally Posted by kcbrown View Post
I don't disagree with you at all. Frankly, the real choice is between "living constitution" types who support the rights and liberties we value, and ones who want to see them destroyed. People who really do adhere to the principles of liberty simply aren't in the cards for this.

And it's quite clear that when the choice is that, you go with the "living constitution" type who agrees with you.

The point wasn't to suggest a better alternative. There is no better alternative. The point was only to set the proper expectations of what will happen if we get what we choose.
I was pretty sure you were with me.

At this point, winning is all that matters. Frankly, politics and constitutional principles have gone so far off the rails, the "muh constitution" reasoning fails because "muh constitution" has been corrupted by leftists to mean "Abortion legal, guns and self defense not" so "muh constitution" basically means backing the leftists on whatever campaign they want, just doing it slower.

As you yourself have admitted, we need an article V to amend the constitution. Many people I know are advocating for secession/breakup of the US. Whatever it is, it clearly involves a radical reimagining and codification of the current legal contract on a constitutional level- either a severing or expelling of those who don't like it, or a rewrite and clarification to radically change what we already have and how it functions- whether it be extra restrictions or limits or nullification of court power, etc.

^That's pretty much a forgone conclusion at this point. The only issue is what we bring to the table as inalienable rights, that we actually HAVE and EXERCISE, as those are the ONLY things that will stand a chance of being protected at the next major constitutional revision. Right now, our job is to get the cake back; THEN we worry about how we preserve the cake.
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  #247  
Old 10-20-2017, 10:26 AM
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Judge Bea needs to be on the president's very, very short list for the next SCOTUS vacancy. We should all vocally insist upon it.
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