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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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  #281  
Old 12-27-2011, 8:28 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Do they need a "compelling interest" in watered down heightened scrutiny? And what happens to heightened scrutiny anyway when there is at best de minimis and at worst no burden on the exercise of the core right? Seeing as scrutiny is unsettled at this point in time, my problem with this case and similar cases like the roster case is that as vehicles for heightened scrutiny they are factually weak and I would rather see cases that are factually strong.
"Scrutiny", as we all discuss it, is a term fabricated, pulled from thin air,
specifically so judges would not have to enforce the 14th as it was written.
Be careful about placing too much weight on that particular bit of etherial
nonsense. Push too hard and the actual, obvious, well-documented
meaning of the 14th may actually become (once again) the law of the land.
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  #282  
Old 12-27-2011, 8:31 PM
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Originally Posted by curtisfong View Post
You could lend a hand.
As I have stated repeatedly in the past, FGG does lend us a hand. He writes
well and provides typical abrasive statist arguments. If we cannot deal with
his issues here in this forum, we cannot possibly hope to deal with others
presenting similar ideas in actual courtrooms.
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  #283  
Old 12-27-2011, 8:40 PM
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Originally Posted by command_liner View Post
He writes well and provides typical abrasive statist arguments.
Thanks!
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  #284  
Old 12-27-2011, 9:54 PM
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I think FGG provides better than the typical statist nonesense. His arguments, though manipulative and subversive to the spirit of the law, are well reasoned and rational when taken in context of the legal muck and mire our nation finds itself in.
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  #285  
Old 12-27-2011, 10:39 PM
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Originally Posted by SoCal Bob View Post
Much has been discussed out about how already having a firearm negates the need to eliminate subsequent waiting periods since you can already provide for self defense at home. What if the person, seeking a more appropriate home defense weapon, was a hunter and only had a .30-06 rifle or a 44 magnum revolver. I personally would rather have my next door neighbor use a 9mm or .40S&W, rather than a .30-06 or a 44 magnum, to defend himself/herself against an intruder.

Different jobs require different tools. This is like the State telling me that there is no need for me to have immediate access to a screwdriver because I already own a hammer. Both are tools but each has its own appropriate usage.

This argument scares me. It is just as easy for the state to say that just because you have a single shot .22 at home does not mean you are properly equipped to go on a mass murder rampage in a crowded mall, a task more suited to a modern semi automatic handgun or rifle which you can now cash and carry.

Thoughts?
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  #286  
Old 12-27-2011, 11:10 PM
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Default Wait for it.

What really jerks my chain is having to wait 10 days and pay a DROS fee to recover a firearm left on consignment sale at a dealer. This firearm is already my property, yet the state is essentially confiscating it until I pay the ransom and wait for them to give permission to continue ownership. Especially given that I possess other firearms, a waiting period is senseless.

If the concern is any new criminal disqualifications on my part, then there are much less inconvenient means to process such inquiries. It seems to me that all states should be forced to use the instant background check as the least intrusive method.

I await the results with great expectations.
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  #287  
Old 12-27-2011, 11:55 PM
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Quote:
Originally Posted by command_liner View Post
Another well written, well reasoned analysis from our favorite, but easy-to-discover, hidden commentator. I do like you work.

But the basis for analysis is fundamentally, utterly wrong, in the normal FGG style.

If you read some of those old documents, like the US Constitution, you will
find that the people created the state to secure the rights of the people.
The state has right, no purpose, no reason, no being, no justification, no
interest, no rational basis for starting analysis from the point of view that
the people have no rights, and the state can ladle out a few privileges
from the tureen of state-owned-rights. There is no reason, save pure
exercise of power, for the state to argue this case. The state is not
in comport with its reason for being when it argues such an idiotic
position, that *some* people that already have firearms must somehow
wait 10 days to buy some other firearms in certain conditions. Other people
do not have to wait. Sure, people are perfectly free to assemble as many
firearms as they want with no waiting period. But purchase of a whole
functional firearm is not permitted.

Only a megalomaniac statist moron can argue there is some interest for
the state in this area. All rational, sane actors must conclude the state
has no viable position.

But we can expect Kamela to spend a $10M to exercise her ignorance.
I think you and I read a different constitution, as well as articles of confederation, civic's books and american history books.

The colonies were founded by the english giving charter more often then not to english companies.

The independent colonies formed their own government before the revolution. Obviously after the revolution some things changed in those government (excluding british rule, etc.)

The colonies realized for their own good, they should form a pact among themselves due to common interests, security, etc. This was the articles of confederation. That document laid out what was best handled by a central government, and all other power was retained by the states, as each states government was more in line with the will of its inhabitants.

The articles were found lacking, and in order to form a more perfect union between the states, the constitution was created.

No where in the constitution does it talk about "people created the state to secure the rights of the people"

Since ours is a representative form of government, we vote people who's view point is as close to our own as we can find and then entrust them to enact laws in line with our shared beliefs.

Since the this is stated filled with anti 2A lib-tards, the politicians are doing the will of the people that elected them.

The system "system" is functioning as designed. Doesn't mean what they are doing is right, legal, or constitutional. That's why we have to fight it. But your premise that the state "can't dictate what laws we have (your definition of "rights")" on at the state level is incorrect.

As for the state not having a reason to argue for this idiotic, bass awkwards law, "because its the will of the people (people will vote for me because they are too stupid to see it makes no sense), is all the justification the power grabbers need to want to fight us.
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  #288  
Old 12-28-2011, 12:01 AM
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Quote:
Originally Posted by Schrodinger's Cat View Post
This argument scares me. It is just as easy for the state to say that just because you have a single shot .22 at home does not mean you are properly equipped to go on a mass murder rampage in a crowded mall, a task more suited to a modern semi automatic handgun or rifle which you can now cash and carry.

Thoughts?
I think its a false premise for the start. The 10 wait/cool off period is about revenge/domestic violence, etc.

Granted, some people just go off and want to take out the entire company they work for, for i believe the law came about because of things like girl friend brakes guys heart, so he kills her/guy finds girl cheating/gets fired and wants to kill his boss..... impulse things like that. So in a single execution scenario, it doesn't matter what weapon.

I think the entire premise is false though. If someone is so pissed they are driven to actual murder, i'd think they'd wait the 10 days, just stewing and end up in worse rage 10 days later.
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  #289  
Old 12-28-2011, 12:49 AM
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Originally Posted by sreiter View Post
The articles were found lacking, and in order to form a more perfect union between the states, the constitution was created.

No where in the constitution does it talk about "people created the state to secure the rights of the people"
You're quite right. That language appears in the Declaration of Independence, which is very frequently confused with the Constitution, and which is a strong ideological influence to this day.

"That to secure these rights, governments are instituted among men..."
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  #290  
Old 12-28-2011, 1:28 AM
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Great. This makes so much sense, it will have to fail initially.
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  #291  
Old 12-28-2011, 5:11 AM
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Originally Posted by sreiter View Post
No where in the constitution does it talk about "people created the state to secure the rights of the people"
"We THE PEOPLE of the United States, in Order TO ... SECURE the blessings of LIBERTY to ourselves and our Posterity, do ordain and ESTABLISH THIS CONSTITUTION for the United States of America."
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  #292  
Old 12-28-2011, 6:18 AM
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Geez i feel sorry for you guys in CA, quite frankly i dont see any rational argument for the waiting period IN THE FIRST PLACE, much less constutionality
(from arkansas) (my reguards)
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  #293  
Old 12-28-2011, 6:28 AM
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Quote:
Originally Posted by taperxz View Post
What's the governments compelling interest in the 10 day wait/cooling off period/ban for someone who already owns a firearm?
there isnt one. lol.
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  #294  
Old 12-28-2011, 6:48 AM
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The argument for no wait after first purchase is related to self-defense.

Sure, must of us gun enthusiasts want more guns. And it would be very satisfying to walk out of the store the same day with our new purchase.

However, the argument that waiving the 10-day for each purchase after the first to preserve the right to self defense is, your 'first' or 'all' of you weapons could be out for repair. Maybe they were all stolen or lost in a fire. Heck, most Calgunners seem to be terrible boaters because they are always losing their guns in the water.

If your gun that you trust your life on suddenly becomes unreliable, broken, stolen, out for repairs.... wouldn't you want the ability to make another purchase and be able to protect yourself immediately?
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  #295  
Old 12-28-2011, 7:11 AM
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I can armchair quarter back all I want, and i'm not a lawyer, but I am hoping after the nth 10 day ban is overturned that our good legal team will go after the first ten days too, simply due to the fact that denying someone access to their first form of self defense for ten days is blatantly unconstitutional.
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  #296  
Old 12-28-2011, 7:46 AM
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Quote:
Originally Posted by sreiter View Post
I think its a false premise for the start. The 10 wait/cool off period is about revenge/domestic violence, etc.

...

I think the entire premise is false though. If someone is so pissed they are driven to actual murder, i'd think they'd wait the 10 days, just stewing and end up in worse rage 10 days later.
However, this way it is no longer a crime of passion, but now legally becomes 1st degree murder (malice & forethought).

You showed intent to kill by: buying the gun, waiting 10 days, and THEN going on your killing spree.

It may be considered to be a state interest (by the state) to eliminate potential defenses like 'crime of passion'.
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  #297  
Old 12-28-2011, 7:50 AM
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Originally Posted by tabrisnet View Post
However, this way it is no longer a crime of passion, but now legally becomes 1st degree murder (malice & forethought).

You showed intent to kill by: buying the gun, waiting 10 days, and THEN going on your killing spree.

It may be considered to be a state interest (by the state) to eliminate potential defenses like 'crime of passion'.
What's to say someone doesn't get really angry on day 10 of the waiting period, go pick up the their gun, and kill someone? Why is 10 days the magic number? Why not 3 or 4 or 20 or 50?

The whole concept of a law preventing someone from murdering someone is just weak. If laws stopped crime, there wouldn't be any.
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  #298  
Old 12-28-2011, 8:09 AM
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Originally Posted by tabrisnet View Post
However, this way it is no longer a crime of passion, but now legally becomes 1st degree murder (malice & forethought).

You showed intent to kill by: buying the gun, waiting 10 days, and THEN going on your killing spree.

It may be considered to be a state interest (by the state) to eliminate potential defenses like 'crime of passion'.
the state will argue malice and aforethought in every case, the defense will push heat of passion
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  #299  
Old 12-28-2011, 8:09 AM
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Quote:
Originally Posted by Bhobbs View Post
.
.
.

The whole concept of a law preventing someone from murdering someone is just weak. If laws stopped crime, there wouldn't be any.
For some of us there may be a definitional problem here.

Not sure what the legal definition is, but many of us think of crime as being a violation of the criminal code. If this is the case, then criminal law actually results in criminal behavior (since if there were no criminal code there could not be violations of the criminal code).

But I actually think it is reasonably accepted that having a reasonable criminal code paired with enforcement does deter/stop a lot of violent and very nasty behavior.
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  #300  
Old 12-28-2011, 8:45 AM
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Strong arguments exist for the plaintiffs, but this is not an open and shut case.

While I hope the plaintiff prevails, lets see what the State might argue.
1. Even though the plaintiff already owns and carries a gun, maybe those are broken and he's buying the new one that works so he can kill someone immediately after purchase.
2. He's buying the gun for his friend who wants to kill someone, thus waiting will result in the friend cooling off.
3. If 10 days is too long, 5 is still constitutional.

These aren't great arguments, in fact they have plenty of holes, but we will surely see every argument the State can imagine. Maybe the Court will rule that the 10 day wait doesn't apply to CCW holders, like the plaintiff, but it still applies to all others.

Good luck, your efforts are very appreciated!
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  #301  
Old 12-28-2011, 8:51 AM
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Quote:
Originally Posted by Haplo View Post
Strong arguments exist for the plaintiffs, but this is not an open and shut case.

While I hope the plaintiff prevails, lets see what the State might argue.
1. Even though the plaintiff already owns and carries a gun, maybe those are broken and he's buying the new one that works so he can kill someone immediately after purchase.
2. He's buying the gun for his friend who wants to kill someone, thus waiting will result in the friend cooling off.
3. If 10 days is too long, 5 is still constitutional.

These aren't great arguments, in fact they have plenty of holes, but we will surely see every argument the State can imagine. Maybe the Court will rule that the 10 day wait doesn't apply to CCW holders, like the plaintiff, but it still applies to all others.

Good luck, your efforts are very appreciated!
Here is an argument that DOJ will bring up. We don't have a system in place to do this. Most important......................we will lose big $$$ on the DROS fees.
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  #302  
Old 12-28-2011, 9:05 AM
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In California, during my lifetime, the wait on handguns was as long as 15 days. It was reduced over time and long arms (previously cash and carry) were later subjected to the standardized 10 day wait.

A short, but interesting, read on point came from Clayton Cramer in the early 1990's when the wait for a handgun was still fifteen days. It might be kind of illustrative to the discussion if his data points were brought forward from 1990 to current day and see just how the murder rate has been affected by waiting periods.
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  #303  
Old 12-28-2011, 9:45 AM
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Here is an argument that DOJ will bring up. We don't have a system in place to do this. Most important......................we will lose big $$$ on the DROS fees.
they won't lose money on dros ,they will still charge that. however, the feds already do a background check on the purchaser and the dros is not necesarry because the feds do it for free.
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  #304  
Old 12-28-2011, 10:09 AM
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You won't get rid of the state fees. Other states steal money for what the feds do without charge too. The amount of theft varies; in Nevada it's $25 for no reason other than an extra tax.
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they won't lose money on dros ,they will still charge that. however, the feds already do a background check on the purchaser and the dros is not necesarry because the feds do it for free.
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  #305  
Old 12-28-2011, 11:01 AM
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the state will argue malice and aforethought in every case, the defense will push heat of passion
Yes, of course. Difference is how easy we make it for the prosecutor to shoot that argument/defense down.
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  #306  
Old 12-28-2011, 12:43 PM
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Having only enough time to read the 1st page, what does this mean in simpler terms?
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  #307  
Old 12-28-2011, 2:57 PM
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Originally Posted by tabrisnet View Post
However, this way it is no longer a crime of passion, but now legally becomes 1st degree murder (malice & forethought).

You showed intent to kill by: buying the gun, waiting 10 days, and THEN going on your killing spree.

It may be considered to be a state interest (by the state) to eliminate potential defenses like 'crime of passion'.
Frankly, the entire argument that killing someone with an obviously deadly weapon, such as a firearm or knife, can ever have its treatment changed based on whether or not there was "passion" involved is BS.

You are responsible for the consequences your actions. Period. The only way you should get off of a full murder charge for killing someone (when it wasn't self defense, defense of others, or maybe, depending on your point of view, defense of property) is if you somehow killed them unexpectedly, e.g. you hit them with your fist once in exactly the right way that it killed them. And while that should wind up being something other than murder entirely, you are still responsible for the consequences of your actions. The use of an obviously deadly weapon takes the "unexpectedly" out of the equation entirely.

Passion should have nothing to do with it. Whether you intend to kill someone as a result of your own rage or for some other premeditated reason should be entirely irrelevant -- your intent was to kill without sufficient justification. That strikes me as murder no matter how you slice it.

And that means the state has no business attempting to differentiate between the two, and it certainly has no business infringing on someone's right to keep and bear arms when they need to do so now, just to reduce the odds a little that someone might use the firearm in a fit of rage. Indeed, I would argue that the act of going to the gun store and buying the firearm takes sufficient time and effort (even sans the 10 day wait) that someone who subsequently uses the newly-purchased firearm to kill someone did so with premeditation.
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  #308  
Old 12-28-2011, 3:05 PM
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Whether or not it makes sense to you and I, the law on that is not going to change much anytime soon.

The key point is not what you or I might think is right. The key is how courts will interpret the situation and the relevant law.
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  #309  
Old 12-28-2011, 3:47 PM
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Quote:
Originally Posted by kcbrown View Post
Frankly, the entire argument that killing someone with an obviously deadly weapon, such as a firearm or knife, can ever have its treatment changed based on whether or not there was "passion" involved is BS.

You are responsible for the consequences your actions. Period. The only way you should get off of a full murder charge for killing someone (when it wasn't self defense, defense of others, or maybe, depending on your point of view, defense of property) is if you somehow killed them unexpectedly, e.g. you hit them with your fist once in exactly the right way that it killed them. And while that should wind up being something other than murder entirely, you are still responsible for the consequences of your actions. The use of an obviously deadly weapon takes the "unexpectedly" out of the equation entirely.

Passion should have nothing to do with it. Whether you intend to kill someone as a result of your own rage or for some other premeditated reason should be entirely irrelevant -- your intent was to kill without sufficient justification. That strikes me as murder no matter how you slice it.

And that means the state has no business attempting to differentiate between the two, and it certainly has no business infringing on someone's right to keep and bear arms when they need to do so now, just to reduce the odds a little that someone might use the firearm in a fit of rage. Indeed, I would argue that the act of going to the gun store and buying the firearm takes sufficient time and effort (even sans the 10 day wait) that someone who subsequently uses the newly-purchased firearm to kill someone did so with premeditation.
You need to read up on the difference between murder and manslaughter:
http://en.wikipedia.org/wiki/Manslaughter
http://en.wikipedia.org/wiki/Murder

Passion has everything to do with it. Not saying the state should meddle in here, but your argument would be better constructed if you understand how these two concepts work.
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  #310  
Old 12-28-2011, 4:29 PM
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Originally Posted by jamesob View Post
they won't lose money on dros ,they will still charge that. however, the feds already do a background check on the purchaser and the dros is not necesarry because the feds do it for free.
Well, they would only "need" to register the firearm, so they can charge $19, instead of $25 ?
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  #311  
Old 12-28-2011, 4:55 PM
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Quote:
Originally Posted by Schrodinger's Cat View Post
This argument scares me. It is just as easy for the state to say that just because you have a single shot .22 at home does not mean you are properly equipped to go on a mass murder rampage in a crowded mall, a task more suited to a modern semi automatic handgun or rifle which you can now cash and carry.
This is similar to the flaw in Fabio's arguments.

The issue is not that we need to prove that we should be able to "XYZ"
The issue is that the state must prove that there is an overwhelming benefit to society in maintaining the current laws.

Actual statistics from 35+ states without waiting periods (and for that matter, with no registration, shall-issue, etc...) do not support that premise.
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Old 12-28-2011, 5:07 PM
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You need to read up on the difference between murder and manslaughter:
http://en.wikipedia.org/wiki/Manslaughter
http://en.wikipedia.org/wiki/Murder

Passion has everything to do with it. Not saying the state should meddle in here, but your argument would be better constructed if you understand how these two concepts work.
I agree that it has everything to do with it in terms of how the law is constructed now. My argument is that the law itself is faulty because it reduces the burden of responsibility for one's own actions on the basis of one's "state of mind". But one is always responsible for one's own actions as long as one's state of mind was not involuntarily altered through the use of mind-altering substances or mechanisms.

Since that's not how the state of law is, of course, no arguments that proceed on those assumptions can possibly work.


And that's really the problem. Because the law is coded the way it is, courts will assume that the state has an interest and responsibility where it really shouldn't. That means we almost certainly will not win a case against the initial 10 day waiting period, and it also means that (IMO) the case against the subsequent 10 day waiting period is going to be an uphill battle (or, at least, more than it would otherwise be). But both are worth fighting anyway.
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Old 12-28-2011, 5:38 PM
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"We THE PEOPLE of the United States, in Order TO ... SECURE the blessings of LIBERTY to ourselves and our Posterity, do ordain and ESTABLISH THIS CONSTITUTION for the United States of America."
The Preamble serves solely as an introduction, and does not assign powers to the federal government, nor does it provide specific limitations on government action.

Further, there is still no "we establish states so we can have rights" text.

Further still, the preamble is solely speaking to ESTABLISHING CONSTITUTION. The REASON for the establishment was to create a more perfect union between the states/correct deficiencies in the Articles of confederation.

The reason they were able to create the articles, and constitution was because they secured liberty from the crown.

The bill of rights, wasn't added until 3 years later.
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  #314  
Old 12-28-2011, 5:50 PM
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Well, they would only "need" to register the firearm, so they can charge $19, instead of $25 ?
they would call the 6 dollar differance a transission tax, thats so they can spend the money to update software. they will not lower any fee period.
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Old 12-28-2011, 5:52 PM
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I agree that it has everything to do with it in terms of how the law is constructed now. My argument is that the law itself is faulty because it reduces the burden of responsibility for one's own actions on the basis of one's "state of mind". But one is always responsible for one's own actions as long as one's state of mind was not involuntarily altered through the use of mind-altering substances or mechanisms.

Since that's not how the state of law is, of course, no arguments that proceed on those assumptions can possibly work.


And that's really the problem. Because the law is coded the way it is, courts will assume that the state has an interest and responsibility where it really shouldn't. That means we almost certainly will not win a case against the initial 10 day waiting period, and it also means that (IMO) the case against the subsequent 10 day waiting period is going to be an uphill battle (or, at least, more than it would otherwise be). But both are worth fighting anyway.
One must consider another angle. If I'm someone who is carefully planning and executing a deadly attack on another person, it may be that that the probability of repeated similar behavior may be much higher than if I am unusually provoked and react with deadly force.


Let's take the report a year or so ago of the pharmacist who defended himself when his pharmacy was robbed and, when the robber was (IMHO) stopped, the pharmacist pumped a round or two into his head? The odds that the pharmacist will ever again exhibit that kind of behavior are near zero - but it would not surprise me if he was convicted of 2nd degree murder.

This is a very different kind of mind-set than someone who carefully planned out and executed a murder plot against someone they did not like. The odds that someone who behaved in this manner will murder again seem pretty high.

I think the distinction between 1st and 2nd degree murder is a valid one but likely imperfectly applied.

FWIW
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Old 12-28-2011, 6:01 PM
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We're getting a bit side-tracked here, but I think the alternative argument is more likely: those who are "predisposed" to quick and lethal [unjustified] violence are more likely to unlawfully employ lethal force again than someone who (non-commercially) methodically plans to murder someone else (operating on the presumption that the incentive to apply lethal force is removed once the the murderer achieves his desired outcome).

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  #317  
Old 12-28-2011, 10:21 PM
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Far afield indeed.

The government will defend its position by asserting that showing present registration of a gun doesn't mean that it is operable, in ones possession or fit for ones needs.

The waiting period protects society by allowing folks, who surely exist, who seek to purchase a gun for an ill purpose to reconsider. It gives law enforcement a chance to be alerted. It gives the state additional time to delve into historical data on applicants which may not be available in the NICs system.

The waiting period whose existence barely implicates the 2A serves the valuable societal goal of preventing and deterring violence.
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Old 12-28-2011, 10:24 PM
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The waiting period whose existence barely implicates the 2A serves the valuable societal goal of preventing and deterring violence.
And I'll concede the waiting period to the state if they can prove conclusively in court that the waiting period actually does prevent and deter violence enough to be statistically relevant.


Fortunately for our side, with the overwhelming majority of states being no-wait and having the dreaded "gun show loophole", they probably won't be able to show statistically relevant data points.
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Laws that forbid the carrying of arms...disarm only those who are neither inclined nor determined to commit crimes...Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.
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Old 12-28-2011, 11:11 PM
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Far afield indeed.
The waiting period protects society by allowing folks, who surely exist, who seek to purchase a gun for an ill purpose to reconsider. It gives law enforcement a chance to be alerted. It gives the state additional time to delve into historical data on applicants which may not be available in the NICs system.

But the question is do they actually look at the history of said purchasers? If they don't then it's a moot point. How can you argue that you're going to loose the ability to do something if you've never done it before and don't have plans on doing it now?
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  #320  
Old 12-29-2011, 6:46 AM
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No where in the constitution does it talk about "people created the state to secure the rights of the people"
THIS ... is simply not so.
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