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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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  #2281  
Old 03-10-2018, 3:33 PM
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The reason NSSF didn’t raise the constitutionality question is because old models can be grandfathered in, so the defendants can claim no 2a infringement. CA actually uses this argument in their breif against nssf, but nobody read that either.
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  #2282  
Old 03-10-2018, 3:36 PM
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How does this make it more or less unconstitutional?
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  #2283  
Old 03-10-2018, 3:36 PM
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Quote:
Originally Posted by TruOil View Post
1. They are safety features. How many times have you heard of an idiot who dropped the mag, and after shooting someone declared "I thought the gun wa unloaded?" You have no idea how many lives are saved by these safety features, and you cannot extrapolate from the number of "successful" negligent discharges to someone who realized before pulling the trigger that the gun was loaded? It is like DGUs: there is no way to acscertain the effectiveness of the law.
They are not safety features.

We know this because LE are allowed to purchase and use 'unsafe handguns', endangering the public and their own families.
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  #2284  
Old 03-10-2018, 3:48 PM
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How does this make it more or less unconstitutional?
The NSSF vs CA Microstamping doesn't argue on the basis of the constitutionality. Do some research for yourself. NSSF argues that a law that requires something that is impossible to do cannot be enforced. NSSF lost the first case because they admitted that it is possible to place two stamps both on the firing pin. If manufacturers would just comply, then they could sell new guns in CA. If they choose not to comply, then they can continue selling older models. Please people, do some research before you go popping off. I hate this too, but they are the facts and there are sure a lot of uneducated people here. Pena vs Cid, now that is based on the constitutionality of the handgun roster. If the court upholds in the NSSF case that it is possible to place two stamps using the firing pin (one above the other), than how is the handgun roster unconstitutional? All manufacturers have to do is comply with the requirements to sell new guns in CA, just like car manufacturers had to comply with the airbag requirements to sell cars (which they fought bitterly and lost). Also, the state can simply argue that old handguns are exempt for new roster requirements so just keep producing and selling old models.

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  #2285  
Old 03-10-2018, 4:10 PM
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Originally Posted by Librarian View Post
They are not safety features.

We know this because LE are allowed to purchase and use 'unsafe handguns', endangering the public and their own families.
This.

If it was really about safety, LE would NOT be exempt, not for their duty gun, not for their personal guns.

Also, once tested, the firearm should forever remain on the list, but instead if the annual payment is not made, the law abiding citizens can no longer buy it.

The color, grips or engraving should not matter either, but it does.
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  #2286  
Old 03-10-2018, 4:20 PM
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Originally Posted by kemasa View Post
This.

If it was really about safety, LE would NOT be exempt, not for their duty gun, not for their personal guns.

Also, once tested, the firearm should forever remain on the list, but instead if the annual payment is not made, the law abiding citizens can no longer buy it.

The color, grips or engraving should not matter either, but it does.
Agreed, had nothing to do with safety. In the Pena case the state has expanded the definition of safety to include public saftey to explain the microstamping requirement. Obviously its total BS and a defacto ban on semi auto handguns. Sooner or later manufacturers will all stop making their older models. This is what CA is banking on, but they will argue that that is up to the manufacturers. Also they will argue that they can comply with the roster and make both stamps with the firing pin.
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  #2287  
Old 03-10-2018, 4:32 PM
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Originally Posted by lawj11 View Post
Agreed, had nothing to do with safety. In the Pena case the state has expanded the definition of safety to include public saftey to explain the microstamping requirement. Obviously its total BS and a defacto ban on semi auto handguns. Sooner or later manufacturers will all stop making their older models. This is what CA is banking on, but they will argue that that is up to the manufacturers. Also they will argue that they can comply with the roster and make both stamps with the firing pin.
It won't matter much unless people get a Real ID when your CA ID/DL renews, otherwise you will get the illegal alien version, which can't be used for firearms.
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  #2288  
Old 03-10-2018, 4:41 PM
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Originally Posted by lawj11 View Post
Agreed, had nothing to do with safety. In the Pena case the state has expanded the definition of safety to include public saftey to explain the microstamping requirement. Obviously its total BS and a defacto ban on semi auto handguns. Sooner or later manufacturers will all stop making their older models. This is what CA is banking on, but they will argue that that is up to the manufacturers. Also they will argue that they can comply with the roster and make both stamps with the firing pin.
True but the judges in the appeals court referred to what CA is banking on as “an infringement”

Two judges went on to say that if you remove a church cause you don’t like that church and argue that you can still use other church’s, that would be an infringement on a right. Two of those judges actually seemed to view two aspects in Pena as possible infringements, mag disconnect and micro stamping.
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  #2289  
Old 03-10-2018, 4:42 PM
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Originally Posted by kemasa View Post
This.

If it was really about safety, LE would NOT be exempt, not for their duty gun, not for their personal guns.

Also, once tested, the firearm should forever remain on the list, but instead if the annual payment is not made, the law abiding citizens can no longer buy it.

The color, grips or engraving should not matter either, but it does.

Why haven't they gone this direction in lawsuits?
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  #2290  
Old 03-10-2018, 4:56 PM
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Why haven't they gone this direction in lawsuits?
You would have to ask the lawyers. I don't know.
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  #2291  
Old 03-10-2018, 5:07 PM
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Originally Posted by taperxz View Post
True but the judges in the appeals court referred to what CA is banking on as “an infringement”

Two judges went on to say that if you remove a church cause you don’t like that church and argue that you can still use other church’s, that would be an infringement on a right. Two of those judges actually seemed to view two aspects in Pena as possible infringements, mag disconnect and micro stamping.
That’s a good point, I hope they were genuine in using the church analogy and not just playing devil’s advocate.
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  #2292  
Old 03-10-2018, 7:20 PM
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Originally Posted by TruOil View Post
1. They are safety features. How many times have you heard of an idiot who dropped the mag, and after shooting someone declared "I thought the gun wa unloaded?" You have no idea how many lives are saved by these safety features, and you cannot extrapolate from the number of "successful" negligent discharges to someone who realized before pulling the trigger that the gun was loaded? It is like DGUs: there is no way to acscertain the effectiveness of the law.
I don't know how many have been saved or not, but most of the country doesn't have these laws and the number of deaths is very low. Even if the law was effective, it doesn't effect enough people to be be a legitimate government interest. Certainly not enough to remove people's civil rights.

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2. Cars ARE heavily regulated. That is why we have seat belts (I am old enough to remember when cares did not even have them), air bags, DRLs, airbags, crush zones, etc. etc. etc. I don't perceive that any manufacturer thinks of these safety features being a "car ban." There would be well over 1000 handguns on the roster but for the microstamping rule, and while we may argue as to the efficacy of any particular measure, would you rather have handguns that are or are not drop safe and won't blow up in your hand under normal circumstances? This is what the original roster law was intended to accomplish and it did. In fact, drop safe features are incorporated in most new handguns 9except Series 70 Colt 1911s).
You can still buy an old car out of state and bring it into California. I would bet there are exemptions (available to more than just LEO) even for reproduction old cars without seat belts.

No one would suggest it's a car ban because it isn't a car ban in the way the roster is a gun ban.

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4. The analogy to the First Amendment is inapt. You can still have guns, and as many guns as you like, as long as they are on the Roster. Your right to keep and bear them is unaffected. The original intent, and the purpose of its requirements, is top prevent you from shooting dangerous guns. And as I said, the later requirements were to protect people from their own stupidity and/or lack of training.
It's like the church argument from Peña (mentioned earlier), I can still have religion, just not the one I want.

So I want a Smith and Wesson 686-2 , oh dang that one is banned. I guess I have to go Charter Arms..

So I want Christianity as my religion, oh dang that one is banned, I guess I have to go Islam.

If I can't get the arms I want, I can't bear arms. The only way for this to happen is if there is a real serious problem related to the right, and the government has to prove there is a problem , and prove they laws fix it. They can't play around with these basic rights like they do with cars, it doesn't work like that.
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  #2293  
Old 03-10-2018, 8:04 PM
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Honest question from the uneducated here: how come the NRA is not more involved with CA’s unconstitutional and restrictive gun laws, like the lawsuit they they just filed in Florida? Or did they in the case of the CA roster or microstamping?
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  #2294  
Old 03-10-2018, 10:29 PM
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Originally Posted by FlyingShooter View Post
Honest question from the uneducated here: how come the NRA is not more involved with CA’s unconstitutional and restrictive gun laws, like the lawsuit they they just filed in Florida? Or did they in the case of the CA roster or microstamping?
They’re involved throught the Californa Rifle and Pistol Association (CRPA).
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  #2295  
Old 03-10-2018, 10:35 PM
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Originally Posted by abinsinia View Post







You can still buy an old car out of state and bring it into California.

This is not entirely accurate. I know people that have tried to bring in smart cars that run on diesel and they are turned away when they try to register the car.
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  #2296  
Old 03-11-2018, 4:47 AM
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This is not entirely accurate. I know people that have tried to bring in smart cars that run on diesel and they are turned away when they try to register the car.
Very true. Also certain car part manufactures will not ship performance parts to California because they are illegal, just like firearms.


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  #2297  
Old 03-11-2018, 8:11 AM
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Very true. Also certain car part manufactures will not ship performance parts to California because they are illegal, just like firearms.
It is worst than just that, consider a cat. converter, if it is not registered as tested for CA you can't use it, which greatly increases the cost to replace it. It has to be marked with some number.

Also, the firearms which are not on the certified list are NOT illegal, the ability to transfer them is just limited, which is a big difference.
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  #2298  
Old 03-11-2018, 8:25 AM
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Originally Posted by kemasa View Post
It is worst than just that, consider a cat. converter, if it is not registered as tested for CA you can't use it, which greatly increases the cost to replace it. It has to be marked with some number.

Also, the firearms which are not on the certified list are NOT illegal, the ability to transfer them is just limited, which is a big difference.
I would have guessed cars would be less regulated , not sure now with all the comments.

When I wrote that you could buy a car outside California, I was thinking more like a Model T, or a 57 Chevy , not something too new. I would assume California would have exemption for that. Compared to guns you can't transfer an older gun which was privately owned into California ownership, no matter how much work you have done on it, unless you have special rights or a special situation.
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  #2299  
Old 03-11-2018, 1:58 PM
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On the car comparison...
Do you have a specific Constitutional right to own a car?
Do you have a Constitutional Amendment declaring no infringement on your right to own firearms?
Bad analogy
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  #2300  
Old 03-11-2018, 2:12 PM
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You guys are all missing the point. The church analogy is the only one that makes a good comparison because it’s a right. Car analogies don’t work because it is a privilege. You can regulate privileges but a right is undeniable.
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Old 03-11-2018, 3:14 PM
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You guys are all missing the point. The church analogy is the only one that makes a good comparison because it’s a right. Car analogies don’t work because it is a privilege. You can regulate privileges but a right is undeniable.
True, nothing in the Bill of Rights about cars, but freedom of religion is protected.
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Old 03-11-2018, 3:20 PM
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Originally Posted by JeffC View Post
On the car comparison...
Do you have a specific Constitutional right to own a car?
Do you have a Constitutional Amendment declaring no infringement on your right to own firearms?
Bad analogy


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Old 03-11-2018, 3:28 PM
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The Bill of Rights grants you NO Rights, it just is supposed to prevent the government from violating your rights. Vaporize the paper and you still have those rights, but the government might not respect them.
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  #2304  
Old 03-11-2018, 3:40 PM
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The Bill of Rights grants you NO Rights, it just is supposed to prevent the government from violating your rights. Vaporize the paper and you still have those rights, but the government might not respect them.
Um, the Bill of Rights is there to protect God given rights. Not sure this is up for debate here.
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Old 03-11-2018, 3:52 PM
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Um, the Bill of Rights is there to protect God given rights. Not sure this is up for debate here.
See above, some seem to think that the Bill of Rights grants Right and if it isn't listed there it isn't protected.
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  #2306  
Old 03-11-2018, 3:53 PM
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True, nothing in the Bill of Rights about cars, but freedom of religion is protected.
You could apply it to any of the other rights, the religion one does seems to be the most thought provoking. I was using books and movies earlier, but when you talk about banning Atheism or any other religion it seems like it would really hit people.
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Old 03-11-2018, 3:55 PM
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See above, some seem to think that the Bill of Rights grants Right and if it isn't listed there it isn't protected.
well that would be false: "Article the eleventh... The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
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Old 03-11-2018, 3:57 PM
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You could apply it to any of the other rights, the religion one does seems to be the most thought provoking. I was using books and movies earlier, but when you talk about banning Atheism or any other religion it seems like it would really hit people.
The books analogy is actually used in the oral argument for Pena. Like with religion, I think I't be hard to tell people you can't read this book, but here are some others.
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Old 03-11-2018, 4:01 PM
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What is encouraging to me is that the "commonly use" test, which came about from the Heller vs DC case, applies here. The rest of the US permits new firearms WITHOUT microstamping. Such guns are "commonly used", so how can they be banned? (or was it the Miller case, can't keep em straight anymore.)
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Old 03-11-2018, 5:28 PM
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Default Peña v. Cid (Handgun Roster) **Appealed to 9th 2/26/15** Oral args 3/16/17

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What is encouraging to me is that the "commonly use" test, which came about from the Heller vs DC case, applies here. The rest of the US permits new firearms WITHOUT microstamping. Such guns are "commonly used", so how can they be banned? (or was it the Miller case, can't keep em straight anymore.)

The "common use" argument has not, that I know of, helped us in any other case at all. I've no reason to believe it will help here.

We have to raise it anyway, but that's different from it actually working. It won't. Even if the panel finds in our favor, it'll just be overturned en banc.
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Old 03-11-2018, 5:47 PM
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The "common use" argument has not, that I know of, helped us in any other case at all. I've no reason to believe it will help here.

We have to raise it anyway, but that's different from it actually working. It won't. Even if the panel finds in our favor, it'll just be overturned en banc.
I agree an disagree with possible outcomes here.

This isn’t about background checks or AW’s or hicaps. This case is about the roster going rogue. The roster may not go away but some of its requirements that were “add ons” could be eliminated.

The roster and submission for drop tests will remain. Other? Perhaps not
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Old 03-11-2018, 6:28 PM
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The roster and submission for drop tests will remain. Other? Perhaps not
In my view, this would be the right outcome. Drop testing is likely permissible; feature requirements likely not. Unfortunately, in the 9th Circuit, this will require SCOTUS to take the case, which is unlikely under present conditions.

Frankly I’m happy to let this case take as long as it can at this point. Maybe by 2020 the court will have a new member or two.
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Old 03-11-2018, 6:30 PM
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I agree an disagree with possible outcomes here.

This isn’t about background checks or AW’s or hicaps. This case is about the roster going rogue. The roster may not go away but some of its requirements that were “add ons” could be eliminated.

The roster and submission for drop tests will remain. Other? Perhaps not
The 9th Circuit can issue any decision it wants. It knows it won't be taken up by the Supreme Court, since firearms are involved.

As such, why in the world would you believe the 9th Circuit (the en banc court, at any rate) would give us anything?


There was a time where even modest optimism was reasonable. That time has long since passed. No, at this point, if you're going to claim we're going to get anything at all, you're going to have to make a solid argument, with supporting evidence, in favor of it. The default is now that we will lose, because that is exactly what has happened thus far, under nearly every circumstance.

That wasn't known at the time this action was brought, so in no way is it criticism of that. And there's some possibility (not much, but some) that the Supreme Court composition will change in our favor before this would otherwise get there. But absent substantial real evidence to that effect, the fate of this case is quite clear, and unambiguously against us.
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  #2314  
Old 03-11-2018, 7:17 PM
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Originally Posted by kcbrown View Post
The 9th Circuit can issue any decision it wants. It knows it won't be taken up by the Supreme Court, since firearms are involved.

As such, why in the world would you believe the 9th Circuit (the en banc court, at any rate) would give us anything?


There was a time where even modest optimism was reasonable. That time has long since passed. No, at this point, if you're going to claim we're going to get anything at all, you're going to have to make a solid argument, with supporting evidence, in favor of it. The default is now that we will lose, because that is exactly what has happened thus far, under nearly every circumstance.

That wasn't known at the time this action was brought, so in no way is it criticism of that. And there's some possibility (not much, but some) that the Supreme Court composition will change in our favor before this would otherwise get there. But absent substantial real evidence to that effect, the fate of this case is quite clear, and unambiguously against us.

I sometimes think about our legal environment now, how emboldened the current courts are to reach decisions heavily influenced by personal opinion or crafting case opinions to meet a desired outcome, and then imagine how different it was just 15 years - even 10 years ago - regarding Kasler v. Lockyer and OLLs.

What. A. Change.
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Old 03-11-2018, 7:44 PM
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Quote:
Originally Posted by kcbrown View Post
The 9th Circuit can issue any decision it wants. It knows it won't be taken up by the Supreme Court, since firearms are involved.

As such, why in the world would you believe the 9th Circuit (the en banc court, at any rate) would give us anything?


There was a time where even modest optimism was reasonable. That time has long since passed. No, at this point, if you're going to claim we're going to get anything at all, you're going to have to make a solid argument, with supporting evidence, in favor of it. The default is now that we will lose, because that is exactly what has happened thus far, under nearly every circumstance.

That wasn't known at the time this action was brought, so in no way is it criticism of that. And there's some possibility (not much, but some) that the Supreme Court composition will change in our favor before this would otherwise get there. But absent substantial real evidence to that effect, the fate of this case is quite clear, and unambiguously against us.
If you can’t see the difference in the argument between cases, I can’t help you.

The Pena case clearly has a different argument in regards to firearms than most. Its more about state over site than the 2A. Even though, the 2A is the argument.

Notice how little Fabio gets involved in the case here.

When the state went rogue and stated the exact same gun can’t be sold in a different color..... The courts can’t ignore this

Last edited by taperxz; 03-11-2018 at 7:47 PM..
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Old 03-11-2018, 8:00 PM
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Default Peña v. Cid (Handgun Roster) **Appealed to 9th 2/26/15** Oral args 3/16/17

Quote:
Originally Posted by taperxz View Post
If you can’t see the difference in the argument between cases, I can’t help you.



The Pena case clearly has a different argument in regards to firearms than most. Its more about state over site than the 2A. Even though, the 2A is the argument.
None of that matters. This case is in front of the 9th Circuit, which has repeatedly demonstrated its willingness to do anything and everything to ensure that we lose. On what basis can you possibly even contemplate that, somehow, this time will be different?

A number of lawyers have claimed that the court will not address arguments that aren't raised. But the court can certainly ignore arguments that are raised, because it has done precisely that in the past. If 2A is what is raised then that is what it'll address, most especially since there is so little in 2A jurisprudence that is in our favor. It'll ignore anything else that might result in a more favorable outcome.

How many times do you need that football pulled away out from underneath you before you realize that it'll always be pulled away?


Quote:

Notice how little Fabio gets involved in the case here.

True as that may be, I'm skeptical that his lack of commentary will help the outcome, amusing as such a notion is.


Quote:
When the state went rogue and stated the exact same gun can’t be sold in a different color..... The courts can’t ignore this
Oh yes they can. They can ignore any damned thing they please. Didn't you learn ANYTHING from Peruta?? When will you begin to learn just how arbitrary and outcome-focused the courts have become?
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The real world laughs at optimism. And here's why.

Last edited by kcbrown; 03-11-2018 at 8:04 PM..
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Old 03-11-2018, 8:26 PM
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If the courts ruled the way they should they absolutely would agree it's insane you can't buy the same gun in a different color. Unfortunately that is not the reality we are dealing with. They know they can ignore Heller and McDonald. The decision will say "what's so hard about buying the other color slide and swapping them out? Seems like that is a lot easier than filing a federal suit!"
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Old 03-11-2018, 9:22 PM
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Originally Posted by kcbrown View Post
There was a time where even modest optimism was reasonable. That time has long since passed.
9th circuit three judge panel: "We find that, given a pragmatic evaluation of what guns have been allowed on the roster as requirements have been added, that the latest requirement constitutes a ban on firearms specifically of the type deemed protected in the Heller decision, therefore the microstamping requirement is found to be unconstitutional."

9th circuit en banc, "First of all, I shall throw my hot coffee in the plantiff's face. *splash* Now... per Heller, this is a 'qualification on the commercial sale' of firearms which only affects vendors, and as we noted in Teixeira no one even has a right to sell firearms, so we fart in your general direction for daring to mention the second amendment in this case. But even if we had to consider that garbage amendment, which we don't, this law would survive any level of scrutiny, because it's called the 'not unsafe handgun roster' who's name alone conveys, and thus ensures, the perfect amount of public safety... all hail the roster!"
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Old 03-12-2018, 12:48 AM
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Default Peña v. Cid (Handgun Roster) **Appealed to 9th 2/26/15** Oral args 3/16/17

The whole roster idea is absurd. You shouldn't have to buy a gun and then swap out parts to your liking. Just because a gun has a different SKU number due to color doesn't mean it's less safe. You should be able to buy the gun you want from the factory because obviously they've done the R&D to know what works. Let's say I want to buy a USP with a stainless side but it's not available on the roster so I have to buy a standard USP and swap out the slide. By doing that I actually made the pistol less safe and possibility void the warranty. Let's say I want to practice Christianity but I can't because it's not available. The state is allowing me to practice Judaism because it has the same core ideas but just call God by a different name. What you want is not available but here's a close substitute. Deal with it. Judicial review...??
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Old 03-12-2018, 6:34 AM
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Quote:
Originally Posted by phdo View Post
Let's say I want to practice Christianity but I can't because it's not available. The state is allowing me to practice Judaism because it has the same core ideas but just call God by a different name. What you want is not available but here's a close substitute. Deal with it.
The courts (and the public, but that’s less important) aren’t going to find that individual handgun models are as unique as individual religions or individual books. So no matter how much -we- may like these comparisons of the net result of the roster to the first amendment, if they’re not compelling/persuading anyone, we should probably move on from them.

Firearms either exist and provide for self-defense in the home, or they do not, so the courts need something more binary shoved in their face (although that’d still be no guarantee; see Peruta) I think drawing parallels to the fourth amendment might be more productive. I haven’t really spent any time musing about the specifics, but perhaps something that ends with, “so if you want privacy, just use grandfathered electronic devices from before 2012.”
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