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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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  #1  
Old 08-22-2013, 2:53 PM
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Default Peña v. Cid (Handgun Roster) **case dismissed and Appealed to 9th 2/26**

Peña v. Cid [Cal. DOJ BoF]
Issue: Handgun Roster

Current Status:
2/26/2015 Appealed to 9th Circuit Court of Appeals - see https://www.calgunsfoundation.org/li...ena-v-lindley/

2/26/2015 - judge at Eastern District grants Defense motion to dismiss - http://ia801400.us.archive.org/30/it...91444.94.0.pdf

As of 2/7/2014: Awaiting Decision on Cross-MSJs; hx on Mtn to Supp. Rec. set for 2/28/2014.

1/28/2014 - Motion to Supplement Record, filed by Alan Gura (P&A, Decls. by Ruger, S&W); hx set for 2/28/2014.
1/16/2014 - Notice of Supp. Auth., filed by Alan Gura (re: D.C. microstamping reqts).
12/31/2013 - Stip IAW 12/18 order.
12/30/2013 - Transcript of 12/16 hx; may be purchased (high $) until released 3/31/2014.
12/18/2013 - Order to file stip w/ supplemental info.
12/16/2013 - MSJ hxs.
12/9/2013 - DOJ's reply.
12/9/2013 - CGF's reply.
12/2/2013 - DOJ's opposition to CGF's MSJ (SSUMF response).
12/2/2013 - CGF's opposition to DOJ's MSJ (SSUMF response).
11/4/2013 - Cross-MSJs hx reset to 12/16/2013.
11/2/2013 - CGF's MSJ Brief [corrected].
11/1/2013 - Glock's Amicus Brief.
10/26/2013 - CGF's MSJ filed (P&A, SSUMF, see docket for Decls., hx 11/22/2013).
10/25/2013 - Glock, Inc.'s Amicus Motion filed.
10/25/2013 - DOJ's MSJ filed (P&A, SSUMF, see docket for Decls., hx 11/22/2013).
7/1/2013 - Answer to SAC.
6/10/2013 - 2nd Amended Complaint (added micro-stamping, by stip).
5/28/2013 - Discovery reopened through 10/4/2013 (limited to micro-stamping), dispositive motions by 11/22/2013.
9/6/2012 - Wilfredo Cid was replaced by Stephen Lindley, Chief, California DOJ Bureau of Firearms.
8/1/2012 - Stay lifted.
8/9/2010 - Stay extended pending further consideration of Nordyke in light of McDonald opinion.
10/2/2009 - Stayed pending Nordyke.
4/30/2009 - Complaint.

Trial Court: E.D. Cal.
Case No.: 2:09-cv-01185
Docket: http://ia801400.us.archive.org/30/it...44.docket.html

Links:
Related CGN discussion thread: http://www.calguns.net/calgunforum/s...d.php?t=179227
Roster of Handguns Certified for Sale in California: http://certguns.doj.ca.gov/
CA DOJ BOF Newly Added Handguns Models: http://oag.ca.gov/sites/oag.ca.gov/f...entlyadded.pdf (Thanks ChaoSS)
CA DOJ BOF De-Certified Handguns Models: http://oag.ca.gov/sites/oag.ca.gov/f...ms/removed.pdf (ditto)
CGF Wiki for this case: http://wiki.calgunsfoundation.org/index.php/Pena_v_Cid
CGF Wiki Litigation page: http://wiki.calgunsfoundation.org/Li...st_and_Present

Last edited by Librarian; 02-27-2015 at 9:07 PM.. Reason: updates fix docket
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  #2  
Old 09-25-2013, 9:50 AM
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Default can't get to links....

Message says server is busy.....
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Old 09-25-2013, 8:15 PM
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Originally Posted by jdoane9724 View Post
Message says server is busy.....
Which link, and is it still an issue?
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Case Status: Peña v. Cid (Handgun Roster). SF v. 44Mag (Mag Parts Kits). Bauer v. Harris (DROS Fees). Davis v. LA (CCW policy). Jackson v. SF (Ammo/Storage). Teixeira (FFL Zoning). First Unitarian v. NSA (Privacy). Silvester (Waiting Period). Schoepf (DROS Delay). Haynie (AW ban). SFVPOA v. SF (10+ mag possession ban). Bear in Public: Drake (3CA); Moore (7CA); Richards, Peruta, McKay (9CA).
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Old 09-25-2013, 8:47 PM
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Which link, and is it still an issue?
Last 2 links - CGF sites
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Old 09-25-2013, 9:04 PM
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Last 2 links - CGF sites
Well, considering Oracle is preoccupied by blocking off half of downtown SF for OpenWorld2013, and the outcome of that little sailboat race today, I'm not surprised that a MySQL server is too hammered, uhhh, I mean, "unavailable."

I don't have any control over what happens to the links, but I'll revise my post if they change.
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Case Status: Peña v. Cid (Handgun Roster). SF v. 44Mag (Mag Parts Kits). Bauer v. Harris (DROS Fees). Davis v. LA (CCW policy). Jackson v. SF (Ammo/Storage). Teixeira (FFL Zoning). First Unitarian v. NSA (Privacy). Silvester (Waiting Period). Schoepf (DROS Delay). Haynie (AW ban). SFVPOA v. SF (10+ mag possession ban). Bear in Public: Drake (3CA); Moore (7CA); Richards, Peruta, McKay (9CA).
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Old 09-25-2013, 9:04 PM
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Default Maybe a link

This is what I got.

Quote:
Sorry! This site is experiencing technical difficulties.
Try waiting a few minutes and reloading.

(Can't contact the database server: mysqlnd cannot connect to MySQL 4.1+ using the old insecure authentication. Please use an administration tool to reset your password with the command SET PASSWORD = PASSWORD('your_existing_password'). This will store a new, and more secure, hash value in mysql.user. If this user is used in other scripts executed by PHP 5.2 or earlier you might need to remove the old-passwords flag from your my.cnf file (mysql.sra321.geovario.com))


--------------------------------------------------------------------------------

You can try searching via Google in the meantime.
Note that their indexes of our content may be out of date.

Calguns Foundation Wiki WWW
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Old 11-04-2013, 8:41 PM
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The wiki is wacky and lacking. Tons of activity in the docket.

Any updates?
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Old 11-04-2013, 9:03 PM
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Yes, please update.
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Old 11-04-2013, 9:21 PM
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Having looked at the docket, a summary:

On October 25 and 26th Defendant and Plaintiff each filed notice informing the other that on Nov 22 each would file a motion for summary judgement. ETA after a bit of education - thanks, Fabio - the motions are already filed.

Defendants say 'nothing to see here'.

Plaintiffs say 'Roster is unconstitutional'.

Entertaining, but the response to the requests will be more like 'activity', I think.
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Last edited by Librarian; 11-05-2013 at 1:01 PM..
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Old 11-04-2013, 10:25 PM
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Thank you
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Old 11-04-2013, 11:19 PM
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Quote:
Originally Posted by Librarian View Post
Defendants say 'nothing to see here'.

Plaintiffs say 'Roster is unconstitutional'.
Succinct and entertaining. I am tempted to let you translate all the legalize for me from now on.....
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let me guess this means the case will move as fast as a Tuttle on heroin now instead of a snail on salt.................
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Old 11-05-2013, 5:42 AM
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Quote:
Originally Posted by Librarian View Post
On October 25 and 26th Defendant and Plaintiff each filed notice informing the other that on Nov 22 each would file a motion for summary judgement.
Not sure what docket you're looking at but the motions have been filed already and November 22nd is the hearing.

Here's my summary:

DOJ says "no substantial burden".

CGF lazily recycles 2009 MSJ and makes no attempt to argue substantial burden.

See my years-old posts on this stinker of a case for predictions how these arguments will play out.

Anyone think the 9th Circuit will not adopt a substantial burden test?
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Old 11-05-2013, 5:46 AM
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Looks like another "urinating into a fan" situation. Pete
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Old 11-05-2013, 6:22 AM
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The funniest part of the DOJ's motion is the "substantial burden" precedent cited at page 15 of its points and authorities.
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Old 11-05-2013, 9:27 AM
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Thanks to all for the gentle reminder to update.

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
The funniest part of the DOJ's motion is the "substantial burden" precedent cited at page 15 of its points and authorities.
Let me guess, Teixeira?
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Old 11-05-2013, 9:48 AM
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Teixeira plus a couple more. ; )
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Old 11-05-2013, 10:03 AM
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Originally Posted by FABIO GETS GOOSED!!! View Post
The funniest part of the DOJ's motion is the "substantial burden" precedent cited at page 15 of its points and authorities.
Ah the beauty of Circular logic. We ruled something one way therefore we need to be consistent with our ruling and use that as precedent.

Isn't the point to try to get a definitive ruling on this issue not these multiple circle jerks from all the circuit courts?

This is the ultimate problem with ambiguous laws and Lawyers...at some point they have to be rest with the only method that has been used for years. Complete clean slate.....
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Old 11-05-2013, 10:15 AM
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Can someone update the state of Teixeira, if there are any updates? Supposedly, there was a hearing in early September, on the MTD. Somehow, I seem to have missed the discussion on Calguns about the outcome of that case. The CGN thread about Teixeira seems to have turned into the usual disruption of discussion. If there is another thread about it, please point me to it.
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Old 11-05-2013, 10:41 AM
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tagged
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Old 11-05-2013, 11:02 AM
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Originally Posted by FABIO GETS GOOSED!!! View Post
The funniest part of the DOJ's motion is the "substantial burden" precedent cited at page 15 of its points and authorities.
I read this document and did not see or missed it, the question as to why the handgun is not safe for some people, non LE and safe for others, LE, living in the ]same state. Also how will micro stamping increase the safety of the firearm? The roster is called, safe hand gun, so the added requirement of micro stamping, has nothing to do with safety.

Can someone help me with this one?
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Old 11-05-2013, 11:03 AM
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Quote:
Originally Posted by chainsaw View Post
Can someone update the state of Teixeira, if there are any updates? Supposedly, there was a hearing in early September, on the MTD. Somehow, I seem to have missed the discussion on Calguns about the outcome of that case. The CGN thread about Teixeira seems to have turned into the usual disruption of discussion. If there is another thread about it, please point me to it.
I've updated my OP in Teixeira.
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Old 11-05-2013, 11:21 AM
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Can someone update the state of Teixeira, if there are any updates?
Case was tossed out by the district court and CGF has appealed to 9th circuit lol.
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Old 11-05-2013, 11:22 AM
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I wouldn't hold my breath on Pena going anywhere, anytime soon. Best to just forget about it for now.
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Old 11-05-2013, 11:33 AM
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Originally Posted by BobB35 View Post
Ah the beauty of Circular logic. We ruled something one way therefore we need to be consistent with our ruling and use that as precedent.
What is happening here is (1) CGF is filing cases with weak facts where there is little or no burden on the exercise of the right (2) CGF is losing these cases, and (3) the decisions in these losing cases are being used against them in other cases that also have weak facts/no burden. This is not in the least bit surprising.
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Old 11-05-2013, 11:59 AM
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Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
Not sure what docket you're looking at but the motions have been filed already and November 22nd is the hearing.

Here's my summary:

DOJ says "no substantial burden".

CGF lazily recycles 2009 MSJ and makes no attempt to argue substantial burden.

See my years-old posts on this stinker of a case for predictions how these arguments will play out.

Anyone think the 9th Circuit will not adopt a substantial burden test?
Perhaps there is a subtlety I am overlooking, but the language of the submission is
Quote:
TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on November 22, 2013 at 10:00 a.m. or as soon
thereafter as the matter may be heard, [the Plaintiffs]
...
will move this Honorable Court to enter a summary judgment
in their favor and against Defendant
I do see that, as is customary, the parties have offered their preferred text for the outcome.
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Old 11-05-2013, 12:15 PM
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Quote:
Originally Posted by Librarian View Post
Perhaps there is a subtlety I am overlooking, but the language of the submission is I do see that, as is customary, the parties have offered their preferred text for the outcome.
Each motion has been filed and docketed as a "motion for summary judgment" and all of the moving and opposing and reply papers are filed before the hearing. No motion will be filed on the hearing date (which has been continued from Nov. 22nd to mid-December) as your post suggested. See local rule 230(b) (click here for local rules).
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Old 11-05-2013, 12:38 PM
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Well this is sad and frustrating. I can't see how it IS NOT a substantial burden and the damn judges are bought and paid for by the gun banners. Elections have consequences. These fools get appointed by our elected officials or voted in by us.
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Old 11-05-2013, 12:56 PM
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Originally Posted by mag360 View Post
Well this is sad and frustrating. I can't see how it IS NOT a substantial burden and the damn judges are bought and paid for by the gun banners. Elections have consequences. These fools get appointed by our elected officials or voted in by us.
To begin to understand this it is important to understand two things:

1. In a court of law, plain and simple language doesn't work the same as it does for us. So what some words mean to you and me - doesn't mean the same thing to lawyers and courts.

2. To a significant degree, the meaning of the words in courts/laws are shaped by various court cases. And that is being pointed out by FGG. If you file lousy cases, the resulting lousy opinions change what the words used (in the statutes and in the courts) to mean something (more) injurious to our rights.

If you aren't an expert in RKBA legislation you shouldn't be filing cases - and especially not strategic cases which are likely be precedential or persuasive. Doing so is bad for our rights.
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Last edited by OleCuss; 11-05-2013 at 12:58 PM..
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Old 11-05-2013, 12:58 PM
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Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
Each motion has been filed and docketed as a "motion for summary judgment" and all of the moving and opposing and reply papers are filed before the hearing. No motion will be filed on the hearing date (which has been continued from Nov. 22nd to mid-December) as your post suggested. See local rule 230(b) (click here for local rules).
Ah. Thanks.

It appears, then, that the language of the notice does not quite mean what the usual English usage would suggest. Not an unexpected condition, just a bit surprising it might apply in that document.
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Old 11-05-2013, 1:24 PM
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Quote:
Originally Posted by mag360 View Post
I can't see how it IS NOT a substantial burden...
Well, all you need to do is make a comparison to Heller 1. In Heller 1, you could not possess a handgun in your home. Any firearm in the home must be disassembled or bound with a trigger lock at all times, with no self-defense exception. Obviously this is a substantial burden because you are unable to defend yourself with any firearm. Can you argue any of this in Pena? No.
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Old 11-05-2013, 1:56 PM
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I think the counter-argument is that firearms in common use were mentioned as being allowed.

To us non-lawyers that would seem to mean that if a whole bunch of people elsewhere in the country can buy a 4th Generation Glock, then 4th Generation Glocks are in common use and it is my right to buy one.

That means that a scheme which prevents my purchase of a 4th Generation Glock is not merely a substantial burden, it is an insurmountable burden.

I am guessing, however, that the courts will not see it the same way. They will figure that a Gen 3 is equivalent to a Gen 4 (or similar stupidity) and therefore if I can get a Gen 3 I shouldn't complain if I can't get the Gen 4.
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Old 11-05-2013, 2:13 PM
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Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
Well, all you need to do is make a comparison to Heller 1. In Heller 1, you could not possess a handgun in your home. Any firearm in the home must be disassembled or bound with a trigger lock at all times, with no self-defense exception. Obviously this is a substantial burden because you are unable to defend yourself with any firearm. Can you argue any of this in Pena? No.
However, the implication of this line of thinking is that the state can ban the purchase, possession, etc., of all but one specific make and model of firearm, as "substantial burden" here means "entirely foreclosed", so if the "right" is not entirely foreclosed, there is no "substantial burden".

I note that your specific wording in the above implies that had there been a self-defense "exception" to the requirement that a firearm be disassembled or bound with a trigger lock at all times, then there would not be a "substantial burden" and Heller would thus have gone differently.

Right?
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Old 11-05-2013, 2:14 PM
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Quote:
Originally Posted by OleCuss View Post
I think the counter-argument is that firearms in common use were mentioned as being allowed.
That is the counter argument but no court is going to be doing any statistical inquiry into particular makes or models of firearms to see whether they are "in common use." Heller 1 certainly didn't do that (as if the high standard buntline single shot revolver is in common use lol) and didn't even remotely suggest that anyone else should be doing that either. "Handguns" are in common use and there are plenty of handguns on the roster to choose from. As far as the manufacturers are concerned, they must spend a ton hyping up new "Gen 4" models which go bang just like the old models, so boo hoo if they have to incur costs of loaded chamber indicators, etc.
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Old 11-05-2013, 2:14 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Anyone think the 9th Circuit will not adopt a substantial burden test?
Oh, they will. And just like they tried to do before, they will turn the court analysis that must happen after a substantial burden is found into a rational basis test.
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Old 11-05-2013, 2:21 PM
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Originally Posted by kcbrown View Post
...as "substantial burden" here means "entirely foreclosed"...
No, it doesn't.

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Right?
Wrong.
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Old 11-05-2013, 2:22 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Well, all you need to do is make a comparison to Heller 1. In Heller 1, you could not possess a handgun in your home. Any firearm in the home must be disassembled or bound with a trigger lock at all times, with no self-defense exception. Obviously this is a substantial burden because you are unable to defend yourself with any firearm. Can you argue any of this in Pena? No.
Are you suggesting that absent a "substantial burden" there is no 2A protection whatsoever? I don't think there is any support for this in Heller 1.

Arguably, absent substantial burden there is going to be some lesser standard, but I very much doubt it will be rational basis. Even under the least restrictive application of intermediate scrutiny, a law which says a gun is unsafe because some recurring fee has not been paid, or because the color is different, is not likely to be upheld.

Of course this seems to rely entirely on strict scrutiny for whatever reason.
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Old 11-05-2013, 2:26 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
No, it doesn't.
No? Then why did you mention specifically that there was no "self defense" exception? The implication of such is that the existence of a "self defense" exception would have changed the analysis. Otherwise, mention of lack of a "self defense" exception is superfluous.


Here, let me illustrate why I said what I did:

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Originally Posted by FABIO GETS GOOSED!!! View Post
Obviously this is a substantial burden because you are unable to defend yourself with any firearm.
(emphasis mine)

The implication here is that had there been some firearm that Heller could have defended himself with, there would be no "substantial burden". Applying this to Pena, it follows that if it is possible to acquire some firearm, then there must not be a "substantial burden".

The above interpretation is reinforced by your comment about the absence of a "self-defense" exception in Heller.


In what way does your statement not strongly imply the above (I do agree that it's not a direct logical inference, and thus not absolute)? More to the point, if there is a lesser set of circumstances that also leads to a "substantial burden", where, in your opinion, does that line exist as regards Pena?

Why is the roster as it is not a substantial burden while it would be if it had only one make and model of firearm listed?
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Last edited by kcbrown; 11-05-2013 at 2:36 PM..
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Old 11-05-2013, 2:32 PM
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Originally Posted by Tincon View Post
Are you suggesting that absent a "substantial burden" there is no 2A protection whatsoever?
Can you ask that a different way? (I.e., what do you mean by "2A protection"?) I think I know what you're asking but not sure.
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Old 11-05-2013, 2:36 PM
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Originally Posted by kcbrown View Post
The implication of such is that the existence of a "self defense" exception would have changed the analysis.
No, it's not. Have you read Heller lately?
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Old 11-05-2013, 2:37 PM
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I can't keep up with your edits that retreat from your original positions lol.
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