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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 02-19-2013, 4:32 PM
Sashaalexander Sashaalexander is offline
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Default PENAL CODE SECTION 26350

Hi guy,

Sorry for the stupid question, I'm new here (mean America and California).
I always hear this noise, 2nd amendment, right to carry weapon etc. Today i encountered this penal code. In my opinion, there is no 2nd amendment, or i do not understand anything. What is wrong here?

http://www.leginfo.ca.gov/cgi-bin/di...000&file=26350
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  #2  
Old 02-19-2013, 4:39 PM
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umm I think thats in regards to handgun open carry being banned in CA and the 2nd is not in any PC its in the bill of rights Pc tell you want you cant do bill of rights is rights our goverment cant touch welcome to america and ca
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Old 02-19-2013, 5:09 PM
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So, does it mean i have the 2 amendment right or not?
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Old 02-19-2013, 5:23 PM
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As a legal immigrant you are protected by the Bill of Rights, like any citizen of the United States. Now this doesn't mean you can open carry or concealed carry. You have to abide by the laws of the state. You have the right to own a gun, but you have to provide proof of residency and everything else like any citizen. You have to abide by the laws and you should familiarize yourself with California's Penal Code in regards to guns.

I'm in no way giving you legal advice, and its up to you to know what you can and can't do to stay protected from the legal system or to not break any laws.
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Old 02-19-2013, 5:37 PM
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Quote:
Originally Posted by Sashaalexander View Post
So, does it mean i have the 2 amendment right or not?
no you dont have it right pc and the 2nd are 2 dif things the Pc is in regard to being able to carry a gun in public (Open carry)within CA state lines without a lic to carry (LTC).CA doesnt fill we have the right to protect ourselves in public but when in your house you do

the 2nd amend is one of the rights that our founding fathers gave us, these rights are unalienable rights meaning the goverment cant take them away or restrict your right it was put in place so we the people would have the weapons needed to fight a trannical goverment if that day ever came again (Hopefully it never comes)

here is the bill of rights

http://en.wikipedia.org/wiki/United_...Bill_of_Rights

heres a good video of the meaning of the 2nd
http://www.youtube.com/watch?v=7RgLEGibyXs

all laws like that PC are unconstitutional and one day will hoefully be overthrown in court
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Old 02-19-2013, 5:40 PM
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You have a right to own a gun, you can go into the store and buy it and keep it at home and take it to places where a gun is legal to use (like a firing range).

You do NOT have the right to openly, or concealed carry a gun you own into a public space.
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Old 02-19-2013, 5:43 PM
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Remember, this is Kommiefornia. What YOU think is irrelevant to Sacramento, no matter how valid.

Just follow the law as best you can and try to avoid losing the gun rights that exist under the U.S. Constitution, something our legislators don't care about.

Because they know better than you do. Just ask them.
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Old 02-19-2013, 5:55 PM
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Quote:
Originally Posted by Sashaalexander View Post
So, does it mean i have the 2 amendment right or not?
The US Constitution applies to the Federal Government.

The CA state constitution does not have a "right to bear arms" provision.

Which was why prior to 2007, CA Courts upheld the majority of CA's gun control laws as being constitutional.

It was not until 06-2010, that CA aquired a "right to bear arms".
That was when SCOTUS (McDonald v Chicago) ruled that the Second Amendment was incorporated and applied to state/local governments.

So, as a CA resident, you did not get a "right to bear arms" until about 1.5 years ago.

Also, it will take many years for the Courts to apply this to CA's gun control laws and decide on what is now constitutional.
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Old 02-19-2013, 5:58 PM
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Sasha,

Welcome to the U.S. and to California.

The Second Amendment does provide you with a right, but its also up to the judiciary to interpret the boundaries of that right. The Second Amendment has been confusing to some because of its preamble language "a well-regulated militia..." For many years some believed this meant the Second Amendment only applied to the militia. The Supreme Court finally settled the issue, and made clear the Second Amendment applied to individuals, but the case only addressed firearms kept in the home.

The California Penal Code prohibits, in most cases, the open-carry and concealed carry, of firearms in public.

Where there is a conflict of a law and constitutional right, the Constitution wins, but in this case there is no conflict.

There are efforts to secure a Supreme Court ruling extending the boundaries of the Second Amendment, but that hasn't happened yet.
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Old 02-19-2013, 6:24 PM
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Quote:
Originally Posted by Eikbyrnir View Post
As a legal immigrant you are protected by the Bill of Rights, like any citizen of the United States. Now this doesn't mean you can open carry or concealed carry. You have to abide by the laws of the state. You have the right to own a gun, but you have to provide proof of residency and everything else like any citizen. You have to abide by the laws and you should familiarize yourself with California's Penal Code in regards to guns.

I'm in no way giving you legal advice, and its up to you to know what you can and can't do to stay protected from the legal system or to not break any laws.
I still do not understand, as a legal US citizen, do i have the right to carry a gun per 2nd amendment or it is illegal per this penal code?

I understand the bear arms it is not the same as have arms (keep in home).

and if i have the right to protect myself in public, i have the right to have a gun with me, and have it loaded,

and as i understand, that the license to carry was given to me by constitution, why do i need another one,


Also, what would happen if i go out in the Downtown LA with open carry hand gun? Long Gun?

Everything is so confusing? Why we fight for freedom and constitution if government openly takes it away from us and there is no freedom even promised by constitution. So confusing...

Last edited by Sashaalexander; 02-19-2013 at 6:39 PM..
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Old 02-19-2013, 6:31 PM
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Quote:
Originally Posted by Sashaalexander View Post
I still do not understand, as a legal US citizen, do i have the right to carry a gun per 2nd amendment or it is illegal per this penal code?
its illegal in CA per that PC

most state yes you have the right to carry BUT CA is not one of those states the only way to legally carry in CA is if you go through and get approved for a (LTC) lic to carry which is hard to get in most counties
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Old 02-19-2013, 6:42 PM
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Quote:
Originally Posted by RickD427 View Post
Sasha,

.

Where there is a conflict of a law and constitutional right, the Constitution wins, but in this case there is no conflict.
Why there is no conflict? This is what i do not understand, Sorry for all the stupid questions, it so surprised me, i just feel overwhelmed. I just would never imagine that any state can go against constitution.

Last edited by Sashaalexander; 02-19-2013 at 6:44 PM..
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  #13  
Old 02-19-2013, 6:47 PM
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Quote:
Originally Posted by Sashaalexander View Post
Why there is no conflict? This is what i do not understand, Sorry for all the stupid questions, it so surprised me, i just feel overwhelmed.
Sasha,

There's no conflict because the Supreme Court applied the Second Amendment to guns inside the home. The Penal Code addresses guns outside the home.

If the Supreme Court extends the boundaries of the Second Amendment outside the home, then there would be a conflict.
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Old 02-20-2013, 8:50 AM
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Thanks for clarification guys, it is still confusing, but at least i will not make any stupid mistakes. Not that i intended to take a stroll in the downtown with a gun, but again, good to know.
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Old 02-20-2013, 8:11 PM
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Think of it this way, The United States is the governing body of 50 individual States. The US has set forth rules of life, liberty, and property. The individual States can not take these rights away from its citizens. However, the States themselves can have their own laws and regulations as long as they dont infringe on the constitution/bill of rights. Some States, (California,New York, Etc.) are strict on guns. As long as they dont cross the line of the 2nd Amendment they can impose laws on guns. (Personally I feel the ban on open carry crosses it, but thats what we are waiting for the courts to fight). The 2nd Amendment is very broad and always up for argument. Now look at Marijuiana. It is still illegal at a Federal level but California has decided to allow it in certain cases. It all comes down to rights of the State vs Rights of the Nation. Its confusing and most of the time its retarded, but it ensures each state has their own rights.
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Old 02-20-2013, 8:14 PM
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It is all a mind game. you only have what the other guy (mob) cant take away from you.
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  #17  
Old 03-24-2013, 5:50 PM
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The "right to bare arms" was specific to Slave militias with the intent to stop, contain, or quash any slave uprising's. You d not have the right to carry a gun openly, and good luck getting a concealed carry permit. The constitution is just a marketing tool, and needs a complete revision.
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  #18  
Old 03-24-2013, 6:54 PM
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Not, however a question which calls upon the training and/or experience of our LEO members - moved to 2A.*


*(See, you skeptics, sometimes it happens!)
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Old 03-24-2013, 6:59 PM
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Default For the love of Pete!

This is BEAR-ing arms:



This is BARE-ing arms:



PLEASE get it straight!
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Old 03-24-2013, 7:19 PM
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Samuelx: you beat me to it. I was trying to formulate some funny quip about OHSA and farm labor but just couldn't make it work. (Bare arms, farm equipment...never mind)
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Old 03-25-2013, 10:33 AM
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congratulations, you've been infringed. since you're new to the people's republik it probably has you confused and outraged. unfortunately, it won't get better right away. our politburo considers themselves above such trivial things as the bill of rights.
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Old 03-25-2013, 10:46 AM
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http://www.law.cornell.edu/uscode/text/42/1983

So, 42 USC § 1983 means diddly squat if per'say someone doesn't obtain their CCW on the first go 'round?
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Old 03-25-2013, 12:27 PM
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Quote:
Originally Posted by Aufdrahtsein View Post
http://www.law.cornell.edu/uscode/text/42/1983

So, 42 USC § 1983 means diddly squat if per'say someone doesn't obtain their CCW on the first go 'round?
First one must establish that 'CCW' is among "rights, privileges, or immunities secured by the Constitution and laws".

We're not there yet.

(BTW, it's per se - http://en.wikipedia.org/wiki/List_of...%28P%29#per_se - pronounced as you represent. At least, that's how 21st century English speakers pronounce it; can't say how a first century Roman might have said it.)
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Old 03-25-2013, 12:29 PM
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Originally Posted by RickD427 View Post
There's no conflict because the Supreme Court applied the Second Amendment to guns inside the home. The Penal Code addresses guns outside the home.
NO! This is not true. The SCOTUS ruling in D.C. v. Heller did not say the 2A only applied to individuals inside their home, it said it applies to individuals.
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Old 03-25-2013, 1:00 PM
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I googled "sasha alexander" out of curiosity and experienced a far different result that I would have expected.

I feel this thread is a perfect example of the irreconcilable differences that the state of CA has with the US Constitution, trying to make sense of some CA laws WRT the Constitution is an exercise in futility
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Old 03-25-2013, 6:42 PM
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Quote:
Originally Posted by Sashaalexander View Post
I still do not understand, as a legal US citizen, do i have the right to carry a gun per 2nd amendment or it is illegal per this penal code?

I understand the bear arms it is not the same as have arms (keep in home).

and if i have the right to protect myself in public, i have the right to have a gun with me, and have it loaded,

and as i understand, that the license to carry was given to me by constitution, why do i need another one,


Also, what would happen if i go out in the Downtown LA with open carry hand gun? Long Gun?

Everything is so confusing? Why we fight for freedom and constitution if government openly takes it away from us and there is no freedom even promised by constitution. So confusing...
Indeed that is the debate today- the right to bear firearms on your person vs. the right to bear arms exclusively at home.

If you do not have a presumptive right to carry the firearm on your person, most of the second amendment is dead.
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Old 03-25-2013, 7:10 PM
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Quote:
Originally Posted by zhyla View Post
NO! This is not true. The SCOTUS ruling in D.C. v. Heller did not say the 2A only applied to individuals inside their home, it said it applies to individuals.
Zhyla,

I'm standing behind my statement. Attached is a copy of the Heller decision. Please refer to page 64, first paragraph.

Last edited by RickD427; 11-17-2013 at 9:36 AM..
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Old 03-25-2013, 9:33 PM
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You can keep arms you just cant bare them.
It is a load of hog wash.
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Old 03-25-2013, 9:54 PM
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I see, I see. I don't know what the ruling ended up being on this particular case, but this summary ( opinion excluded ) is a pretty interesting and I think it'd be worth the time of a few people to read: http://www.ninehundred.com/~equalccw/pleadag.html - it's James March vs. Sheriff Warren E. Rupf on a civil rights and due process violation complaint in Contra Costa. That's where the whole 42-USC-1983 came into play in my mind. Any opinion?
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Old 03-26-2013, 12:08 AM
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Originally Posted by Librarian View Post
Not, however a question which calls upon the training and/or experience of our LEO members - moved to 2A.*


*(See, you skeptics, sometimes it happens!)
Ok, this made me laugh....


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Old 03-26-2013, 2:03 AM
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Quote:
Originally Posted by RickD427 View Post
Zhyla,

I'm standing behind my statement. Attached is a copy of the Heller decision. Please refer to page 64, first paragraph.
See also page 19
Quote:
c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guaran- tee the individual right to possess and carry weapons in case of confrontation.
P 29
Quote:
We therefore believe that the most likely reading of all four of these pre-Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes.
P 56
Quote:
... he inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelm- ingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.
The law at issue was DC's handgun prohibition
Quote:
... the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.
-- since that was the presented question, that had to be the scope of the applied decision.

But to get to any right the court had to perform the analysis. The line "... to the home, where the need for defense of self, family, and property is most acute" is taken by some to mean 'self defense is protected ONLY in the home'.

Masciandaro provides the cert petition question "Does the Second Amendment to the United States Constitution protect a right to possess and carry a firearm for self-defense outside the home?", starting
Quote:
Three years ago, this Court announced that the Second Amendment protects an individual right to keep and bear arms in self-defense and defense of the home. District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008). Since that time, numerous federal and state appellate courts from around the country have refused to recognize any Second Amendment self-defense right outside the home. Some courts have assumed (without deciding) that the right could extend beyond the home. Others have explicitly refused to recognize any constitutional self-defense right that exists outside of a traditional primary residence. These courts have read Heller as identifying a constitutional self-defense right only in one’s home or have refused to expand the right until this Court explicitly does so. Lower courts have, to date, upheld every challenged firearm regulation outside the home (with one known exception) using one of four alternative tests.
but cert was denied.

We're still waiting for SCOTUS to take a case that will resolve the issue Masciandaro offered.
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  #32  
Old 03-26-2013, 2:22 AM
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Do you have a right to bear arms outside the home? Probably, but you won't have protection in the courts until we get some additional favorable precedent. For now, the PC is enforceable as enacted. Please stand by.
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Old 03-26-2013, 4:49 AM
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Please stand by.
And the joke in this discussion area is always, the answer/decision will be made/available "in two weeks."
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Old 03-26-2013, 5:35 AM
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Quote:
Originally Posted by Hoooper View Post
I googled "sasha alexander" out of curiosity and experienced a far different result that I would have expected.

I feel this thread is a perfect example of the irreconcilable differences that the state of CA has with the US Constitution, trying to make sense of some CA laws WRT the Constitution is an exercise in futility
LOL i did the same thing, clicked images, and now i'm smitten....

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Old 03-26-2013, 5:57 AM
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Quote:
Originally Posted by Librarian View Post
...But to get to any right the court had to perform the analysis. The line "... to the home, where the need for defense of self, family, and property is most acute" is taken by some to mean 'self defense is protected ONLY in the home'...
Certainly, the instance where one has no home, i.e., "homeless" was considered in this regard. How did that factor in?
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Old 03-26-2013, 7:48 AM
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I googled "sasha alexander" out of curiosity and experienced a far different result that I would have expected.
Exactly, what results you would have expected?
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Old 03-26-2013, 9:01 AM
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RickD427 RickD427 is online now
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Originally Posted by Librarian View Post
See also page 19 P 29 P 56 The law at issue was DC's handgun prohibition -- since that was the presented question, that had to be the scope of the applied decision.

But to get to any right the court had to perform the analysis. The line "... to the home, where the need for defense of self, family, and property is most acute" is taken by some to mean 'self defense is protected ONLY in the home'.

Masciandaro provides the cert petition question "Does the Second Amendment to the United States Constitution protect a right to possess and carry a firearm for self-defense outside the home?", starting but cert was denied.

We're still waiting for SCOTUS to take a case that will resolve the issue Masciandaro offered.
Librarian,

All good points, but remember there is a difference between the "Dicta" in a court opinion and the "Holding." All of your points were quoted from the dicta.

They're good points, and I hope they will be used to support the development of additional case law. Heller was a landmark case, but like all cases, it only opened the door on the issue. It's going to take a lot more case work to define the limits of the right that Heller defined. Look at all of the case law that followed Miranda.
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Old 03-26-2013, 11:55 AM
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Librarian Librarian is offline
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Librarian,

All good points, but remember there is a difference between the "Dicta" in a court opinion and the "Holding." All of your points were quoted from the dicta.

They're good points, and I hope they will be used to support the development of additional case law. Heller was a landmark case, but like all cases, it only opened the door on the issue. It's going to take a lot more case work to define the limits of the right that Heller defined. Look at all of the case law that followed Miranda.
I disagree that was dicta, and it seems later filings, in other cases, also disagree; as I noted in the earlier reply, SCOTUS felt it had to do the analysis to get to whether there was any right at all in dispute.

Certainly the filings from the appellees that claim 'only in the home, not outside' are taking 'most acute' as part of the holding.
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Old 03-26-2013, 11:55 AM
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Exactly, what results you would have expected?
Pretty much just a bunch of people finding websites with 700 results for people whose names vaguely resemble what I searched for. That would be normal
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Old 03-26-2013, 12:11 PM
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....Everything is so confusing? Why we fight for freedom and constitution if government openly takes it away from us and there is no freedom even promised by constitution. So confusing...
Amen brother. Amen.

To answer your question: Progessives. The Deomocrat party has been taken over by them. California has been run by them for decades. Vote Republican. Better yet, TEA Party. They are the true Constitutional Conservatives.
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