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

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  #1  
Old 07-01-2016, 10:16 PM
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Default MAG CONFISCATION ALREADY ILLEGAL - Horne v. Department of Agriculture

I've been preaching (and no one seems to hear me) that SCOTUS 9th already ruled that the new High Cap Magazine confiscation program is ILLEGAL.

Horne v. Department of Agriculture

Quote:
The Fifth Amendment requires the government to pay just compensation when it takes personal property, just as when it takes real property.
The case was actually super interesting regarding raisin harvest confiscation to stabilize market pricing, but the wording of the ruling can be far reaching.

Great 15min podcast about it here
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Old 07-01-2016, 10:25 PM
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I've been screaming about Horne v. Department of Agriculture since LA instituted nuisance confiscation rules.

from majority opinion:

Quote:
Nothing in the text or history of the Takings Clause, or
our precedents, suggests that the rule is any different
when it comes to appropriation of personal property. The
Government has a categorical duty to pay just compensation
when it takes your car, just as when it takes your
home.
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Old 07-01-2016, 11:10 PM
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updated podcast link above to full episode. and updated thread title to attract more than 2 views.
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Old 07-01-2016, 11:11 PM
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Well I sure hope they have over-reached big time to have it backfire on them.
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Old 07-01-2016, 11:13 PM
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Quote:
Originally Posted by kelvin232 View Post
Updated title so maybe i can get more than 2 people to read it.....
I read it. You will get your internet fame after:
1. More people hear/read about the new laws
2. People start asking "how is that legal"
3. They search "how is magazine confiscation legal" in Google
4. They find this thread.


Have a free bump, guy.
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Old 07-01-2016, 11:13 PM
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Every single bill signed today will result in a lawsuit. Some will be easier to win than others. This might be one of them.

I want to see how they try to weasel the Ammo ban around the interstate commerce clause.
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Old 07-01-2016, 11:16 PM
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The opinion paper is pretty clear about precedent defining personal property as requiring government compensation for confiscation.....

I personally believe this ruling overturns civil forfeiture too, but haven't seen anyone challenge using H v. DA
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Old 07-01-2016, 11:20 PM
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LE have been taking and keeping peoples guns without any compensation for years and getting away with it so why would now be any different? One of the big things wrong with this country is that the feds let the states do what they want even though the feds know its against the law.
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Old 07-01-2016, 11:22 PM
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Quote:
Originally Posted by baggss View Post
Every single bill signed today will result in a lawsuit. Some will be easier to win than others. This might be one of them.

I want to see how they try to weasel the Ammo ban around the interstate commerce clause.
Yes I remember the last time they tried to stop mail order it failed because of that didn't it?

What exactly is it and why did they think they can get around it this time?
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Old 07-01-2016, 11:24 PM
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This is our only ray of hope to keep our legal +10 mags.
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Old 07-01-2016, 11:31 PM
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Originally Posted by phdo View Post
This is our only ray of hope to keep our legal +10 mags.
Uhhhh......I was never planning on giving up any of mine in the first place.
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Old 07-01-2016, 11:31 PM
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Originally Posted by R Dale View Post
LE have been taking and keeping peoples guns without any compensation for years and getting away with it so why would now be any different?
what guns have been confiscated that would have been / are affected by this ruling?
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Old 07-01-2016, 11:36 PM
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Quote:
Originally Posted by baggss View Post
Every single bill signed today will result in a lawsuit. Some will be easier to win than others. This might be one of them.

I want to see how they try to weasel the Ammo ban around the interstate commerce clause.
Exactly. This is one of the more ripe ones for a suit, that will be an easier thing to pick apart than the others after what the Supreme Court failed to hear last week on AW lawsuits (or week before?).
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What compelling interest has any level of government in knowing what guns are owned by civilians? (Those owned by government should be inventoried and tracked, for exactly the same reasons computers and desks and chairs are tracked: responsible care of public property.)

If some level of government had that information, what would they do with it? How would having that info benefit public safety? How would it benefit law enforcement?
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Old 07-01-2016, 11:36 PM
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I take issue with the title of this thread.

Where does it hold in the case that magazine confiscation is illegal?

Doesn't this case deal with farmers and raisins?
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Old 07-01-2016, 11:39 PM
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Quote:
Originally Posted by ifilef View Post
I take issue with the title of this thread.

Where does it hold in the case that magazine confiscation is illegal?

Doesn't this case deal with farmers and raisins?


I think the point is that the government can't confiscate property with/without compensation. Property can be a pit bulls, raisins, condoms, etc.
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Old 07-01-2016, 11:41 PM
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Quote:
Originally Posted by ifilef View Post
I take issue with the title of this thread.

Where does it hold in the case that magazine confiscation is illegal?

Doesn't this case deal with farmers and raisins?
post #2 describes the precedent setting vocabulary that is relevant. And that isn't just an out-of-context snippet, that's the theme running through the entire ruling.
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Old 07-01-2016, 11:43 PM
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What realllllllly pisses me off about every single AW,rifle,mag,etc ban and law these @$%*#^%(#^*$^@#&*$!!!!!! come up with ARE ALL MADE TO BE RETROACTIVE!? 1 these aholes should not even be allowed to to introduce this stuff because of the COTUS violations period BUT even if they do, it should not be legal for it to start in the future YET make it effective retroactively,affecting stuff people have owned for decades.

They want to ban 10+... effective xx.xx.xxxx ONLY , not *BTW this includes stuff LEGALLY owned PRIOR....

There has to be to do a class action lawsuit on this because it persecutes and criminalizes 1-2 generations of citizens due to some douchebag with a pen and a hard on to make a name for his/her(do we really know what they are??) self.

Personally if a cop tries to take my preban mag I have a 4 pound sledge next to me and if he insists I will ask him to step back while I FLATTEN it.. no way in hell am I giving my stuff up,specially if functional...also some stuff I have never had 10-rs or if so, completely unreliable and sometimes dangerous..

I say we alL start *****ing about 'OUR MINORITY RIGHTS BEING VIOLATED', BECAUSE WE are A MINORITY GROUP...firearms for us is like a religion that we practice and so it is protected by both the 1st and 2nd... corny but it is true..
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Old 07-01-2016, 11:45 PM
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Quote:
Originally Posted by CessnaDriver View Post
Yes I remember the last time they tried to stop mail order it failed because of that didn't it?

What exactly is it and why did they think they can get around it this time?
Because our legislature, as a whole, are a bunch of idiots?
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Old 07-01-2016, 11:50 PM
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I'd have to read the entire case. But the gist of the Takings Clause is taking of property for public or governmental USE, without just compensation.

I haven't checked the bill for a couple of days, but I think you are supposed to destroy the mags or turn over to the police, who will then destroy them, or sell them to FFL.

What I am saying is the principles may coincide but the law only applies dependent upon the particular fact situation.

But my main reason for posting here was the misleading title of the thread.

It may not be entirely on point, on all fours, so to speak, but you work with what you have.

The title of this thread does not accurately state the holding in this case.

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Old 07-01-2016, 11:51 PM
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Quote:
Originally Posted by The Gleam View Post
Exactly. This is one of the more ripe ones for a suit, that will be an easier thing to pick apart than the others after what the Supreme Court failed to hear last week on AW lawsuits (or week before?).
The best case scenario is that the lower court see's the obvious precedent of the 9th circuit right away and it gets handled quickly.
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Old 07-01-2016, 11:53 PM
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Quote:
Originally Posted by ifilef View Post
I'd have to read the entire case. But the gist of the Takings Clause is taking of property for public or governmental USE, without just compensation.

I haven't checked the bill for a couple of days that was passed, but I think you are supposed to destroy the mags or turn over to the police, who will then destroy them.

What I am saying is the principles may coincide but the law only applies dependent upon the particular fact situation.

But my main reason for posting here was the misleading title of the thread.

It may not be entirely on point, on all fours, so to speak, but you work with what you have.

The title of this thread does not accurately state the holding in this case.
Read the case. the government 'use' included destruction, donation, and resale. I don't see how confiscating my magazine if i don't sell it fast enough, or requiring me to destroy my own property is outside the realm of government control of private property without compensation.... but you never know....
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Old 07-01-2016, 11:56 PM
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Quote:
Originally Posted by kelvin232 View Post
Read the case. the government 'use' included destruction, donation, and resale.
That may help, but the title of this thread, as I have stated, does not accurately describe what the court's holding was in this case.
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Old 07-01-2016, 11:58 PM
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Quote:
Originally Posted by ifilef View Post
That may help, but the title of this thread, as I have stated, does not accurately describe what the court's holding was in this case.
i disagree. but if you think confiscation without compensation isn't what we're talking about here, then i can't help.
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Old 07-01-2016, 11:59 PM
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Let me get the straight. The government cannot confiscation your property. But, when you're in possession of an illegal item then the least of your worries is the confiscation of the item. So how does this solve anything? You can't confiscation my stuff but why can't they prosecute you for having the illegal item?
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Old 07-02-2016, 12:02 AM
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Quote:
Originally Posted by kelvin232 View Post
Read the case. the government 'use' included destruction, donation, and resale. I don't see how confiscating my magazine if i don't sell it fast enough, or requiring me to destroy my own property is outside the realm of government control of private property without compensation.... but you never know....
Understood, but control of dangerous weapons is a category unto itself.

I am NOT saying that a taking clause argument would not apply, but LCM are
not raisins, and may be treated specially or differently, with the public safety argument.

They have been legally deemed 'public nuisances', whatever. Legal to possess before this new law and with this new law illegal to possess. Legal to possess now but still a public nuisance.

The government would argue they should not have to compensate anyone for a prior public nuisance the possession of which will be unlawful. Even now, you can't transfer, give, loan, sell, bequeath them to anyone except sell to an FFL or remove from the state. So, basically those options to sell to an FFL, or to surrender them, or remove from the state, they would argue, are back where you were before the possession ban.

Selling of raisins is lawful; selling of LCM is not, except to FFL with permit. Therein lies the rub.

Having a machine gun here is illegal. Bring a machine gun here, the government will seize it and not only prosecute you but don't expect a 'taking clause' argument to hold any weight. They will not have to compensate you for your loss. It is illegal personal property.

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Old 07-02-2016, 12:03 AM
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Quote:
Originally Posted by phdo View Post
Let me get the straight. The government cannot confiscation your property. But, when you're in possession of an illegal item then the least of your worries is the confiscation of the item. So how does this solve anything? You can't confiscation my stuff but why can't they prosecute you for having the illegal item?
because the entire crux is that they can't require you to dispose of a legal item without compensation of fair market value.
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Old 07-02-2016, 12:04 AM
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Quote:
Originally Posted by ifilef View Post
Understood, but control of dangerous weapons is a category unto itself.

I am NOT saying that a taking clause argument would not apply, but LCM are
not raisins, and may be treated specially or differently, with the public safety argument.
the precedent setting language in post #2 is irregardless of material subject matter. it just clarifies the Takings Clause to include personal property.

So we kinda agree... the court obviously has final say on applicability.
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Old 07-02-2016, 12:10 AM
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Quote:
Originally Posted by kelvin232 View Post
because the entire crux is that they can't require you to dispose of a legal item without compensation of fair market value.


But the item is no longer legal. They're making you dispose of an illegal item. They're not confiscating it.
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Old 07-02-2016, 12:14 AM
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Quote:
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But the item is no longer legal. They're making you dispose of an illegal item. They're not confiscating it.
destruction of the private property is addressed in the original case. If you can define the quantitative difference between the government taking and destroying property (raisins) and the the government requiring destruction of property or risk confiscation and destruction (magazines), then you have a more creative mind than I.
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Old 07-02-2016, 12:17 AM
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the magazines are only illegally possessed in the sense that they need to be destroyed by order of the government. The raisins were illegally possessed in the sense that they were ordered to be turned over to the government and destroyed.

the court ruled a big no-go on that.
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Old 07-02-2016, 12:25 AM
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I find it interesting that people are having a hard time defining 'mandatory surrender of property' as 'confiscation' what else would you call it?
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Old 07-02-2016, 12:56 AM
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Retroactive laws are also illegal per the Bill of Attainder and ex post facto clause in the Constitution.

Quote:
Originally Posted by US Constitution
No Bill of Attainder or ex post facto Law shall be passed.
I don't see how this would stand even rational basis scrutiny. Off to federal court!!
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Old 07-02-2016, 1:12 AM
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I personally believe this ruling overturns civil forfeiture too, but haven't seen anyone challenge using H v. DA
I sure hope we beat civil asset forfeiture soon. Public awareness of the problem is increasing while abuse of asset forfeiture has increased to the point where cops have taken more from us than burglars:

https://www.washingtonpost.com/news/...did-last-year/

Hopefully any wins in defeating civil asset forfeiture can be used to fight gun/magazine confiscation.
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Old 07-02-2016, 1:34 AM
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Quote:
Originally Posted by kelvin232 View Post
what guns have been confiscated that would have been / are affected by this ruling?
I cant believe you are not aware of all the guns confiscated by LE that the owners never get back or have to buy back through all the fees that they have to pay to get their own property returned to them.
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Old 07-02-2016, 2:08 AM
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This is California. We print the Constitution and laws on toilet paper here, didn't you know?

Seriously, my government is lawless, it does not have my respect.
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Old 07-02-2016, 5:07 AM
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How many hi caps have been surrendered in LA city so far? It's been unlawful to possess for awhile. Does anyone think since it is statewide now it will be any different? I don't think so.

Last edited by RTO; 07-02-2016 at 5:13 AM.. Reason: because auto correct sucks.
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Old 07-02-2016, 5:34 AM
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JimWest JimWest is offline
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Quote:
Originally Posted by lonalomaya View Post
Let me get the straight. The government cannot confiscation your property. But, when you're in possession of an illegal item then the least of your worries is the confiscation of the item. So how does this solve anything? You can't confiscation my stuff but why can't they prosecute you for having the illegal item?
Well, supposedly under this law, they can. That's why you have to post here first to declare you have them and won't give them up. Then they can come kick in your door.

Seriously though, I can't get my mind around these laws getting away with being unconstitutional. Mags are part of the weapon and the right to bear arms and if such an item is not prohibited in Texas it should not be prohibited in California. Also, there seems to be inconsistency in how these laws (pertaining to the Constitution) are applied to First Amend principles and religious freedom as demonstrated on the gay and abortion issues.
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Old 07-02-2016, 5:50 AM
walmart_ar15 walmart_ar15 is offline
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Not sure how we can comply with 32310 (c) (1)&(2)?

Quote "...any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazine is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170."

How r we able to sell or give it away? In this case buyers are exempt but not seller? Would rather "possess" which is an infraction than above which is a misdemeanor. (Feels like an entrapment lol)

This only leaves (3)&(4) which is forced destruction by government.

I see this may be the counter argument for "compensations not required since the law provides alternatives to recover cost".
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Old 07-02-2016, 6:05 AM
jothompson jothompson is offline
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You're reading too much into this opinion, unfortunately. I wish you were right about this somehow stopping magazine confiscation but you're wrong.

1) Seizure of illegal contraband is not considered a taking. For example, if one of my criminal clients is caught with some methamphetamine, the government will seize the item as evidence, use it against him at trial, and then destroy it after the judgment/trial. There is no compensation for something illegally possessed.

2) Even if confiscation of magazines was a civil taking, the opinion only means that you have to be compensated for it -- the decision does nothing to stop the government from taking it in the first place.
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Old 07-02-2016, 6:07 AM
speedrrracer speedrrracer is offline
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Quote:
Originally Posted by ifilef View Post
I take issue with the title of this thread.

Where does it hold in the case that magazine confiscation is illegal?

Doesn't this case deal with farmers and raisins?
The case does not hold that mag confiscation is illegal, and even if it did, the case didn't hold that this mag confiscation law is illegal.

Yes, everyone's interpretation above is entirely reasonable, but that doesn't matter. Until the law is struck down, it stands. Yes, unconstitutional laws are null and void, but you and I don't get to make that determination, we're not the judicial branch.

Generally, however, when a law is blatantly unconsitutional in even the anti's eyes, they're better at granting injunctions, fast-tracking stuff, etc. Sadly, because they're antis, what they consider blatantly unconstitutional is pretty much limited to gay / abortion rights
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