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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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  #81  
Old 02-07-2018, 5:17 PM
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Update - DOJ's Motion to Dismiss was granted today (see attachment below). Let's hope that FPC/CGF doesn't decide to appeal this. Enough damage has already been done, this opinion by the judge already provides a template for the 9th Circuit to undo the progress NRA/CRPA has made on Duncan.

Worse yet, the Duncan case is still on track for a trial on the merits and getting this case in front of the 9th Circuit before that happening could be a death blow. The fundamental problem here is the potential the standard of review that would be used by the appellate court. A ruling on a Motion to Dismiss is a pure question of interpretation of law, meaning that the appellate court can undertake an independent review of their own with no deference given to the trial court ruling. In other words, they can interpret the law however they want, and we all know how that will turn out.

A disposition on the merits following a summary judgment or trial is a different story since both involve the presentation and weighing of evidence. If Duncan can proceed to that stage and we get a favorable ruling based on the evidence, and DOJ appeals, then the appellate court is required to review based on the much more stringent substantial evidence standard, where the trial court is presumed to be correct. Reversal under substantial evidence requires a determination that no rational judge/jury could possibly have reached that decision based on an obvious error. In other words, mere disagreement with the trial court result is not enough.

Of course, we can speculate that the 9th Circuit would do the same to Duncan under any standard of review, but substantial evidence level of review would necessitate a lot more work to reach that result.

2004885_Wiese v. Becerra - 2018-02-07 Memo & Order Granting MTD.PDF
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  #82  
Old 02-07-2018, 6:08 PM
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Originally Posted by BumBum View Post
Update - DOJ's Motion to Dismiss was granted today (see attachment below). Let's hope that FPC/CGF doesn't decide to appeal this. Enough damage has already been done, this opinion by the judge already provides a template for the 9th Circuit to undo the progress NRA/CRPA has made on Duncan.

Worse yet, the Duncan case is still on track for a trial on the merits and getting this case in front of the 9th Circuit before that happening could be a death blow. The fundamental problem here is the potential the standard of review that would be used by the appellate court. A ruling on a Motion to Dismiss is a pure question of interpretation of law, meaning that the appellate court can undertake an independent review of their own with no deference given to the trial court ruling. In other words, they can interpret the law however they want, and we all know how that will turn out.

A disposition on the merits following a summary judgment or trial is a different story since both involve the presentation and weighing of evidence. If Duncan can proceed to that stage and we get a favorable ruling based on the evidence, and DOJ appeals, then the appellate court is required to review based on the much more stringent substantial evidence standard, where the trial court is presumed to be correct. Reversal under substantial evidence requires a determination that no rational judge/jury could possibly have reached that decision based on an obvious error. In other words, mere disagreement with the trial court result is not enough.

Of course, we can speculate that the 9th Circuit would do the same to Duncan under any standard of review, but substantial evidence level of review would necessitate a lot more work to reach that result.

Attachment 680078
Unfortunately, I have to agree with your assessment. I am not even convinced that Duncan is/was a good idea given the present makeup of the 9th Circuit.
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  #83  
Old 02-07-2018, 6:24 PM
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OK guys in simply English for us neanderthals. Are grandfathered mags more than 10 rounds still legal or not.
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  #84  
Old 02-07-2018, 6:36 PM
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OK guys in simply English for us neanderthals. Are grandfathered mags more than 10 rounds still legal or not.
The Duncan order remains in force. For now, there can be no effort to enforce the new law.
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  #85  
Old 02-07-2018, 6:36 PM
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The Duncan order remains in force. For now, there can be no effort to enforce the new law.


Thanks so much.


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  #86  
Old 02-07-2018, 7:14 PM
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We know FGG is off-line at the moment. I am surprised he's not already aware of the ruling and here to rub the collective CGF nose in **** over the ruling.
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  #87  
Old 02-07-2018, 10:13 PM
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We know FGG is off-line at the moment. I am surprised he's not already aware of the ruling and here to rub the collective CGF nose in **** over the ruling.

Don't worry, I'm sure he'll come through for us.

As for the 9th circuit, how anyone could possibly believe at this point that what the players do or refrain from doing can possibly yield any beneficial effects for us at that level is quite beyond me, as it requires a whole new level of belief in fairy tale outcomes. Put simply, the 9th Circuit will rule against us no matter what, even if it has to take the case en banc (in the event that we actually manage to draw a favorable panel) to pull it off.



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  #88  
Old 02-07-2018, 10:16 PM
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Originally Posted by BumBum View Post
Update - DOJ's Motion to Dismiss was granted today (see attachment below). Let's hope that FPC/CGF doesn't decide to appeal this. Enough damage has already been done, this opinion by the judge already provides a template for the 9th Circuit to undo the progress NRA/CRPA has made on Duncan.

Attachment 680078
Thanks for the update. Too many cooks spoiling the soup, the ideas you outlined make sense.
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  #89  
Old 02-08-2018, 11:01 AM
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Put simply, the 9th Circuit will rule against us no matter what, even if it has to take the case en banc (in the event that we actually manage to draw a favorable panel) to pull it off.
Clearly.

I think there are about half a dozen vacancies on the 9th CCA. If Trump could fill those quickly, we would go from "guaranteed loss en banc" to "could win en banc", and we would be in a totally different game theory situation. I don't know how long it takes to get those appointments in, but the sooner the better.
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  #90  
Old 02-11-2018, 6:43 PM
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would this mag ban set a precedent to take our RAWs or for that matter any semi auto rifle in a similar fashion?
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  #91  
Old 02-11-2018, 7:01 PM
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Chris,


It does not bode well for us for sure. Since things have gone they way they have. And the black robe scum in the 9th rubber stamp this bull****. There is nothing I mean nothing that California will not do. So if someone tells you that X cannot happen. Oh yes it can, just wait till Newsom becomes governor A2
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  #92  
Old 02-11-2018, 8:44 PM
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Chris,


It does not bode well for us for sure. Since things have gone they way they have. And the black robe scum in the 9th rubber stamp this bull****. There is nothing I mean nothing that California will not do. So if someone tells you that X cannot happen. Oh yes it can, just wait till Newsom becomes governor A2
I agree.
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  #93  
Old 02-12-2018, 2:08 PM
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Chris,


It does not bode well for us for sure. Since things have gone they way they have. And the black robe scum in the 9th rubber stamp this bull****. There is nothing I mean nothing that California will not do. So if someone tells you that X cannot happen. Oh yes it can, just wait till Newsom becomes governor A2
If we lose this injunction I see it as a very bad precedent. Newsom is salivating over the injunction being overturned.
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  #94  
Old 02-14-2018, 8:30 AM
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Default What did we expect would happen? Itís the 9th!

Proof that if you provide the state enough opportunities, they will eventually find a favorable judge. Unfortunately, I never saw the progression of this case as beneficial. I am always amazed at the lack of factual information used throughout the District Courts, ie 3rd and 9th, to deny 2nd amendment rights to the average citizen. As cited in Kolbe, and in this dismissal, it is now accepted precedent that 10 rounds is all you need to protect yourself. Why? Because the opinions of anti-gun organizations are more factual than self-defense expert testimony. Intermediate scrutiny will be the death of the 2nd. Unfortunately, and for the foreseeable future, the 2nd amendment appears to be the least respected amendment in the bill of rights!

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  #95  
Old 02-14-2018, 9:37 AM
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If we lose this injunction I see it as a very bad precedent. Newsom is salivating over the injunction being overturned.
Newsom doesn't care. Prop 63 already did it's intended job, which was to get Newsom's name in the papers as a gun control warrior before the 2018 election - mission accomplished. He couldn't care less what happens with it after that.
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  #96  
Old 02-14-2018, 2:28 PM
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Has anyone read this article? Does it mean high cap mags are banned as of now in CA? Sorry if it was covered. I haven't checked-in in a while. https://www.courthousenews.com/calif...ves-challenge/
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  #97  
Old 02-14-2018, 2:32 PM
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I assume you mean "are POSSESSION of high cap mags banned?"

No, possession is not banned. There is still a preliminary injunction in place. There is more than one lawsuit happening.

See Duncan V. Becerra

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Has anyone read this article? Does it mean high cap mags are banned as of now in CA? Sorry if it was covered. I haven't checked-in in a while. https://www.courthousenews.com/calif...ves-challenge/

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  #98  
Old 02-14-2018, 2:59 PM
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Sorry yeah I meant possession. Thanks for that update. My Steyr GB doesn't have after market 10 round mags and I don't want to "alter" them but maybe 1 if I had to and remove the others out of state if forced to.
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  #99  
Old 02-15-2018, 6:09 PM
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Just in case you weren't sure exactly how this Wiese case was going to impact the Duncan case, I give you Exhibit A. Attached is DOJ’s Rule 28(j) letter, filed yesterday in support of DOJ's appeal of the Preliminary Injunction in Duncan. This example plainly shows how DOJ is using the Wiese decision to torpedo the Duncan Injunction.

28J Letter re Wiese.pdf
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  #100  
Old 02-26-2018, 8:59 PM
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Update: A Third Amended Complaint was filed today. I haven't read it in enough detail to know what the difference is from previous versions, nor do I have any insight on whether this will cure the defects as identified by the court. But at the very least, I am happy to see that the attorneys at least didn’t seek an appeal and jeopardize Duncan.
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  #101  
Old 02-27-2018, 8:03 PM
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I recall reading the original brief filed and the arguments were ridiculous. The idea a high cap magazine was needed to defend yourself from criminals was just ludicrous. Wasn't the organization aware of what state they were making an argument to the court in? Yes it makes since, but it's in no way persuasive or meaningful, especially to an audience that is already anti-gun.

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  #102  
Old 02-27-2018, 8:25 PM
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I recall reading the original brief filed and the arguments were ridiculous. The idea a high cap magazine was needed to defend yourself from criminals was just ludicrous. Wasn't the organization aware of what state they were making an argument to the court in? Yes it makes since, but it's in no way persuasive or meaningful, especially to an audience that is already anti-gun.
I don't necessarily disagree with your point, but to be fair, ANY argument isn't persuasive or meaningful to an audience that is already anti-gun.

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Old 02-27-2018, 11:46 PM
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I don't necessarily disagree with your point, but to be fair, ANY argument isn't persuasive or meaningful to an audience that is already anti-gun.

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Yes, but that was an especially pathetic and lame argument, and at the time I thought it made little sense. The first brief filed that was originally posted was bad lawyering, and I say that because the arguments weren't in any way persuasive.

I recall they we're arguing it was forfeiture which is fine and had merit, but there was some straight NRA jingoism in the original brief that amounted to "the only way to stop a bad guy with a gun, is a good guy with 30 round magazines to help us defend ourselves." That's a paraphrase of one of the original arguments filed in the original brief, and if someone such as myself who is pro 2A can easily realize the flaws and baseless claim that is, what would a crazy liberal judge think?

That's why when it was dismissed by judge he basically laughed the NRA jingoism argument off.
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  #104  
Old 03-01-2018, 10:52 AM
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Yes, but that was an especially pathetic and lame argument, and at the time I thought it made little sense. The first brief filed that was originally posted was bad lawyering, and I say that because the arguments weren't in any way persuasive.

I recall they we're arguing it was forfeiture which is fine and had merit, but there was some straight NRA jingoism in the original brief that amounted to "the only way to stop a bad guy with a gun, is a good guy with 30 round magazines to help us defend ourselves." That's a paraphrase of one of the original arguments filed in the original brief, and if someone such as myself who is pro 2A can easily realize the flaws and baseless claim that is, what would a crazy liberal judge think?

That's why when it was dismissed by judge he basically laughed the NRA jingoism argument off.
But some bad guys have 60-100 round magazines, right? Hello Stephen Paddock???
Or perhaps 3 bad guys with 10 rounds each come to burgle your home ???
A determined bad guy who plans ahead will bring multiple magazines for the job, but an unsuspecting homeowner might just have one in the gun thinking it's "probably good enough".
The proper argument is: no person or group of persons has the clairvoyance to dictate how many rounds is "just right" for the average law-American.
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  #105  
Old 03-01-2018, 10:57 AM
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Originally Posted by FUCA2AFTW View Post
But some bad guys have 60-100 round magazines, right? Hello Stephen Paddock???
Or perhaps 3 bad guys with 10 rounds each come to burgle your home ???
A determined bad guy who plans ahead will bring multiple magazines for the job, but an unsuspecting homeowner might just have one in the gun thinking it's "probably good enough".
The proper argument is: no person or group of persons has the clairvoyance to dictate how many rounds is "just right" for the average law-American.
It doesnít matter. Your life means nothing in California

Call 911 is what law enforcement tells you to do. You are not able to handle a hi capacity magazine.
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  #106  
Old 03-01-2018, 11:05 AM
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Is this injunction still in place?
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  #107  
Old 03-01-2018, 11:10 AM
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But some bad guys have 60-100 round magazines, right? Hello Stephen Paddock???
Or perhaps 3 bad guys with 10 rounds each come to burgle your home ???
A determined bad guy who plans ahead will bring multiple magazines for the job, but an unsuspecting homeowner might just have one in the gun thinking it's "probably good enough".
The proper argument is: no person or group of persons has the clairvoyance to dictate how many rounds is "just right" for the average law-American.
A good example is that the Rand Corp found the NYC officers had an 18% hit rate while using their service weapons. So assuming your as good as a trained NYC officer and are attacked at home with a single 10rd magazine you have to hope that one round or at best two is enough to stop the threat. As pointed out what the other guy(s) is carrying doesn't matter. You are going to get one hit and then be disarmed.
I don't know why we need any other statistic to prove that magazine limits aren't acceptable for home defense. The only reason we shouldn't be using a d60 or a surefire 100rd for home defense is their failure to feed rate is too high. Further anything that makes it harder to reload eg Bullet bottom button or break action release put the home defender in danger.
There home defender had already lost the choice of when and where this fight will take place, the only way to shift the odds back to their favor is more firepower.
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  #108  
Old 03-01-2018, 1:44 PM
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Is this injunction still in place?
This case was dismissed, it never got an injunction.

The Duncan v. Becerra case, to which you're probably referring, still has the injunction in place, yes.
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  #109  
Old 03-02-2018, 2:06 PM
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I have been sick for awhile and haven't kept up on all of the legal wrangling about this.

I have some simple questions.

Can you (currently)possess 20 & 30 rd magazines legally ?

Can you sell 20 & 30 rd magazines to another private party

Can they be given as part of a AR sale ?
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  #110  
Old 03-02-2018, 4:02 PM
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I have been sick for awhile and haven't kept up on all of the legal wrangling about this.

I have some simple questions.

Can you (currently)possess 20 & 30 rd magazines legally ?

Can you sell 20 & 30 rd magazines to another private party

Can they be given as part of a AR sale ?
Possess? Yes.

Sell? Only to out of state, and you can't "advertise them for sale" within this state even if you're selling them to out of the state.

Given? Same answer as selling.

And you didn't ask about acquiring, but I'll answer anyways: Nope.
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  #111  
Old 03-03-2018, 12:37 PM
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A followup question -

Can a person sell 20/30 rd mags blocked to ten rds?
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  #112  
Old 03-03-2018, 1:09 PM
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A followup question -

Can a person sell 20/30 rd mags blocked to ten rds?
yep
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  #113  
Old 03-04-2018, 3:33 PM
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I don't necessarily disagree with your point, but to be fair, ANY argument isn't persuasive or meaningful to an audience that is already anti-gun.

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i agree and taking into consideration that Prop 63 passed with such a wide margin the people of California in general are anti gun.

Remember this "Facts don't matter my mind is made up." This is what we are dealing with. With ZERO chance the public changing this attitude the tide of gun control will never ever stop.
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Thank your neighbor and fellow gun owners for passing Prop 63. For that gun control is a winning legislative agenda.
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  #114  
Old 03-04-2018, 3:41 PM
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i agree and taking into consideration that Prop 63 passed with such a wide margin the people of California in general are anti gun.

Remember this "Facts don't matter my mind is made up." This is what we are dealing with. With ZERO chance the public changing this attitude the tide of gun control will never ever stop.
This is why we need a federal gun rights act similar to the voting rights act. California and other liberal jurisdictions need to have pre clearance on any gun law before it is enacted. Just as the South still has for voting laws. The federal law most also state that all semi autos are legal regardless of features as well as magazines.
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Old 03-04-2018, 4:18 PM
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This is why we need a federal gun rights act similar to the voting rights act. California and other liberal jurisdictions need to have pre clearance on any gun law before it is enacted. Just as the South still has for voting laws. The federal law most also state that all semi autos are legal regardless of features as well as magazines.
I agree 100% I also think that CA, NJ, NY and some other anti gun states are pass the point of no return unless we get federal intervention in a big way.
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Old 03-04-2018, 9:14 PM
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I agree 100% I also think that CA, NJ, NY and some other anti gun states are pass the point of no return unless we get federal intervention in a big way.
Yes. The passage of Prop. 63 is what opened my eyes. Before then, I could not grasp just how so many could be so stupid. But, as they say, the proof is in the pudding. What is especially disheartening is that, except for Thomas, bless his soul, the SCOTUS has shown no interest in protecting the 2A rights of those of us in states like CA. And, this is dangerous, because this vile disease seems to be contagious. Just look at the Florida students who seem to believe that preventing law abiding citizens from owning firearms, especially the most popular modern sporting rifle, would have done more, or even anything, to protect them more than having several of their teachers armed with firearms would have done. It does not take much imagination to think that the situation would have turned out much different if that courageous coach had been armed when he confronted the shooter.
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Old 03-04-2018, 10:18 PM
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Yes. The passage of Prop. 63 is what opened my eyes. Before then, I could not grasp just how so many could be so stupid. But, as they say, the proof is in the pudding. What is especially disheartening is that, except for Thomas, bless his soul, the SCOTUS has shown no interest in protecting the 2A rights of those of us in states like CA. And, this is dangerous, because this vile disease seems to be contagious. Just look at the Florida students who seem to believe that preventing law abiding citizens from owning firearms, especially the most popular modern sporting rifle, would have done more, or even anything, to protect them more than having several of their teachers armed with firearms would have done. It does not take much imagination to think that the situation would have turned out much different if that courageous coach had been armed when he confronted the shooter.
So true what you say, many won't admit it but a serious blow must be done to states rights if we are to see a big improvement in. 2A rights on a nationwide level.
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  #118  
Old 03-04-2018, 10:54 PM
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Default Next CA Governor

Maybe Travis Allen or John Cox might have a chance, both claim to be pro gun / 2nd amendment
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  #119  
Old 03-05-2018, 3:27 AM
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Maybe Travis Allen or John Cox might have a chance, both claim to be pro gun / 2nd amendment
I doubt that either will make it out of the primaries. With the top two go to general as we saw with Kamala Harris our only choice is going to be this Democrat or that one. Far too many people in this state believe Democrats = good, Republicans = bad. The picked their team and won't vote the other. Look at the gas tax, if Grey Davis signed that one we would have out even faster yet where are the local news stories on the gas tax hike and how it isn't going to roads?
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  #120  
Old 03-05-2018, 8:16 AM
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Maybe Travis Allen or John Cox might have a chance, both claim to be pro gun / 2nd amendment
Cox is a RINO if ever there was one. His purpose is to stay in as long as possible, suck dollars and votes away from Allen, who is the only true conservative we have running in this insane Govs race, and then ensure that either Neussance or the other lawless democrat loser wins.

Stop wondering. Give Allen support, tell your friends, neighbors, and co-workers about him, and make sure you give to his campaign. If you have the time, even volunteer. I have given, spread the word, and plan to stay positive. If you don't know much about him, start with Fox's Tucker Carlon. Allen was on his show for the 3rd time now just the other night. Allen has his head on straight and can put in a real fight against the two dems. Let's support him and give our state a chance to revive itself.
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