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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 11-05-2013, 8:30 PM
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Originally Posted by Tincon View Post
Maybe so, but note that you are quoting from the losing side.
The person who penned that opinion is a member of the court, and it would be idiotic to argue that the quoted bit of his opinion does not, in fact, control how he votes on decisions of the court. Moreover, he was joined by three other justices (two of whom have since departed) in his opinion, so one must presume that they, too, agree with the quoted bit of his dissent.

So yes, in fact the Supreme Court also defers to the legislature when there are not sufficient votes in opposition to that.
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Last edited by kcbrown; 11-05-2013 at 8:34 PM..
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  #82  
Old 11-05-2013, 8:36 PM
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Originally Posted by curtisfong View Post
As outlined before, I see no reason for this optimism.

Even if Pena's case were not fatally flawed (which many claim it is), it is likely that every court (short of SCOTUS) will defer to legislative judgement, up to, and including intermediate scrutiny.
No offense, but you are not a lawyer because of the way that you spell 'judgment' and the legislature does not render judgments, they just pass or reject legislation.

We have a USDC looking at a state's irrational and overreaching regulatory scheme, that will significantly infringe on 2nd Amend. fundamental rights, especially re micro-stamping issue; also equal protection might fly on that issue and on lci and mag safeties. That micro-stamping has no rational basis given the current state of the industry and has no relationship to the original intent of the law to prevent unsafe handgun availability. It also stifles commerce and denies California residents access to guns in common use-literally all semi-automatic handguns.

Last edited by ifilef; 11-05-2013 at 8:42 PM..
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  #83  
Old 11-05-2013, 8:40 PM
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Originally Posted by ifilef View Post
rational basis
You sure you want to hang your hat on this, given the other posts in this thread?
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  #84  
Old 11-05-2013, 8:48 PM
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Originally Posted by curtisfong View Post
You sure you want to hang your hat on this, given the other posts in this thread?
I just read both summary judgment motions in the case, and ventured my prediction based on those motions. I would deem the micro-stamping unconstitutional and strike it from the Act for reasons cited in Gura brief; and when only 11 and 14% of handguns nationwide have lci and mag disconnect safeties and should basically be ignored according to the CA position in its Handgun Safety Certificate Guide, I'd probably strike those also. Just my opinion.
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  #85  
Old 11-05-2013, 9:43 PM
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Originally Posted by ifilef View Post
No offense, but you are not a lawyer because of the way that you spell 'judgment' and the legislature does not render judgments, they just pass or reject legislation.

We have a USDC looking at a state's irrational and overreaching regulatory scheme, that will significantly infringe on 2nd Amend. fundamental rights, especially re micro-stamping issue; also equal protection might fly on that issue and on lci and mag safeties. That micro-stamping has no rational basis given the current state of the industry and has no relationship to the original intent of the law to prevent unsafe handgun availability. It also stifles commerce and denies California residents access to guns in common use-literally all semi-automatic handguns.
Well, seeing how "rational basis" has, it seems, been interpreted to mean that a law is valid if one can merely imagine a situation in which the law in question would serve the interest it claims to serve, it's difficult to see how even the microstamping law can be claimed to fail under "rational basis" examination. Remember, too, that "rational" to the courts can (and probably does) mean something very different than "rational" does in the real world.

"Rational basis" is another illustration of how the court system has abandoned its mandate as an effective check on the other branches of government.
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  #86  
Old 11-05-2013, 10:00 PM
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Originally Posted by sumdood View Post
I'm no expert on any of this. But what FGG pointed out is a very valid argument.

The opposition says there is no substantial burden and the argument posed by [CGF?] doesn't even oppose that statement.

Seems like a concern to me.
To me as well. Then again CGF losing a case due to shoddy legal work is nothing new.
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  #87  
Old 11-05-2013, 10:12 PM
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Still waiting for a case where you and FGG get a court to apply rational basis to strike down a law. lol™
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  #88  
Old 11-05-2013, 10:59 PM
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Originally Posted by curtisfong View Post
I'm still unclear on what other "standard" there is.
Are you talking about the "standard set forth in Turner" mentioned in the dissenting opinion? The "standard set forth in Turner" is (quoting Turner, the standard under consideration is in bold):

Quote:
In reviewing the constitutionality of a statute, "courts must accord substantial deference to the predictive judgments of Congress." Id. at 665. Our sole obligation is "to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence." Id. at 666.
So when the Heller dissent says that "[t]here is no cause here to depart from the standard set forth in Turner," he means the "legal standard" by which the predictive judgments of Congress are reviewed, i.e., is the predictive judgment supported by substantial evidence? Here, immediately after quoting the same Turner standard that I just quoted above, the dissent argues that DC's predictive judgments satisfy "that legal standard," in other words, DC's judgment is supported by substantial evidence:

Quote:
And judges, looking at the evidence before us, should agree that the District legislature’s predictive judgments satisfy that legal standard. That is to say, the District’s judgment, while open to question, is nevertheless supported by “substantial evidence.”
"Legal standard" is not synonymous with "standard of scrutiny"...this is Tincon's error. In context, following an 8 page discussion of the competing statistics (DC's vs Heller's), "that legal standard" and "the standard set forth in Turner" are one and the same: the legal standard by which predictive judgments are reviewed. The dissent thinks DC's statistics meet that standard.

You do agree that when the dissent says "that legal standard" and "the standard set forth in Turner," he is talking about the same thing, right Tincon?
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  #89  
Old 11-05-2013, 11:10 PM
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Still waiting for a case where you and FGG get a court to apply rational basis to strike down a law. lol™
CGF should have hammered that IMO.
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  #90  
Old 11-05-2013, 11:30 PM
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[Hmmm, which standard of scrutiny do those case apply?
Hmmm indeed!
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  #91  
Old 11-05-2013, 11:40 PM
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"Careful" is not sufficient when your statements leave sufficient ambiguity as to be indeterminate.
I'm not talking about my statements lol.
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  #92  
Old 11-06-2013, 12:09 AM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Quote:
Originally Posted by kcbrown View Post
"Careful" is not sufficient when your statements leave sufficient ambiguity as to be indeterminate.
I'm not talking about my statements lol.
Oh, the incredible irony of you having said the above in that context...
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  #93  
Old 11-06-2013, 12:15 AM
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Originally Posted by kcbrown View Post
Oh, the incredible irony of you having said the above in that context...
On the incredible italics...

Tell me, is it that hard to make the connection between this:

Quote:
Here's another hint, maybe you're not reading the dissenting opinion as carefully as you should be.
and in the very next post, this?:

Quote:
I can't help it if you and Tincon are not careful readers.
In case this is too indeterminate for you, you have the same problem, not reading the opinion carefully.
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  #94  
Old 11-06-2013, 1:40 AM
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Originally Posted by FABIO GETS GOOSED!!! View Post
In case this is too indeterminate for you, you have the same problem, not reading the opinion carefully.
Listen, you're the one who insists that scrutiny is not a means of determining on a case by case basis whether or not the right is really worth insisting upon when that is exactly what it is.

So either the opinion really is indeterminate (since your reading of it as regards scrutiny contradicts its plain meaning, and if its plain meaning isn't the right one and, instead, your doublespeak interpretation is, then it means that the decision lacks clarity), or you're wrong. Which is it?


You'll note that I didn't back Tincon on his specific method of determination that Heller takes intermediate scrutiny off the table.
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  #95  
Old 11-06-2013, 7:28 AM
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Listen, you're the one who insists that scrutiny is not a means of determining on a case by case basis whether or not the right is really worth insisting upon when that is exactly what it is.
The Heller majority disagrees with you. Here are two questions for you:

Is the first amendment is an enumerated constitutional right?

Has intermediate scrutiny been applied to the first amendment?

Quote:
You'll note that I didn't back Tincon on his specific method of determination that Heller takes intermediate scrutiny off the table.
I'm afraid he has himself in a bit of a pickle on "[intermediate scrutiny]" and "[Hmmm, which standard of scrutiny do those case apply?]" lol.

Tincon, your position is "that legal standard" and "the standard set forth in Turner" (quoted from adjacent paragraphs in the Heller dissent) are the same thing i.e. intermediate scrutiny, right?
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  #96  
Old 11-06-2013, 11:05 AM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Here are two questions for you:

Is the first amendment is an enumerated constitutional right?
Yep.


Quote:
Has intermediate scrutiny been applied to the first amendment?
Yep.


What, you think that suddenly makes scrutiny exempt from the bit of text I quoted?

Either the Supreme Court meant what it said in the passage I quoted (which, for the record, contains no exemptions or carve-outs), or it didn't. Which is it?


Quote:
The Heller majority disagrees with you.
That presumes that the Supreme Court never contradicts itself, never overturns itself.

That is the "we have always been at war with Eastasia" argument.
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  #97  
Old 11-06-2013, 11:07 AM
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kcbrown,

You are arguing with a Statist. Just like the Congress believes the Commerce Clause gives them Carte Blanche, Fabio, he/she, believes that Government can and does infringe on any Right they choose, whenever they choose, the old 1st Amendment game.

The bottom line with the Fabio mentality there really is no reason for a Bill of Rights or Constitution because all Rights and Power emanates from the Government/State and can be curtailed when the mood strikes.

Natural Law, the idea behind the Bill of Rights, is no longer considered, it becomes a matter of what Rights the Government will allow.

How far we have come from the original intent, with the Circular Law Game.

Natural Law is pretty much a dead idea and thus the Bill of Rights takes on a whole new meaning under the Statist Collective Agenda.

Nature always has the last laugh, but it takes time, so a single generation never sees the end result and people like Fabio never see how wrong they were.
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  #98  
Old 11-06-2013, 11:43 AM
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The sooner the SCOTUS rules, the sooner we can tell the Libtards to take the roster and stick it up their butt.
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  #99  
Old 11-06-2013, 12:13 PM
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The first amendment is an enumerated constitutional right. (Presumably the Heller majority is aware of this.)

Intermediate scrutiny has been applied to the first amendment. (Presumably the Heller majroity is aware of this too.)

The Heller majority "know[s] of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach" i.e. method of "decid[ing] on a case-by-case basis whether the right is really worth insisting upon."

Ergo, the Heller majority does not consider intermediate scrutiny (or strict scrutiny for that matter) to be "a freestanding 'interest-balancing' approach."

I get that you think all forms of scrutiny are balancing tests, methods of deciding on a case by case basis, etc.
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  #100  
Old 11-06-2013, 12:32 PM
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"Interest balancing" is code for "we can rationalize this away eventually using an incremental approach."

Also, I have attached Glock's amicus and CGF's corrected P&A to the OP.
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  #101  
Old 11-06-2013, 12:46 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
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.
You are implying that in avoidance of doing the statistical inquiry the court will necessarilly adopt the most limiting definition of "a handgun is available, therefore handguns are available" instead of the most permissive definition of "a handgun is banned therefore handguns are not available."

Besides the two extremes, there are many shades of gray in between that the court could consider and the most restrictive reading, which is what you suggest, is quite unreasonable and a logical stretch (see below).

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Originally Posted by FABIO GETS GOOSED!!! View Post
"Handguns" are in common use and there are plenty of handguns on the roster to choose from.
A smooth bore, black powder, front loading, single shot hand musket is a "handgun" and is available (as C&R). It is a "handgun." Handguns are in common use, therefore allowing *only* the musket satisfies the condition of "handguns are not banned."

The problem with the often-repeated argument that as long as some handguns are permitted handguns are permitted is that the term "handgun" is a very broad term that includes non comparable firearms.

Further, if the "equivalency of handguns" as a hypothesis is to stand (implying that one is a good as the next and that G3 and G4 Glocks are essentially the same), then the roster should actually be struck down as there is no compelling reason to ban G4 while the equivalent G3 is allowed to stand (in the assumed equivalency G4 is no more dangerous than G3). If the argument is that the LCI, magazine disconnect and microstamping make G4 fundamentally different from G3 from the safety perspective, then the roster should again be stricken down as it bans the very common subclass of handguns to which G4 belongs, but G3 doesn't. In this case the "common use" would apply to subclass of G3 (allegedly safe) and subclass G4 (allegedly unsafe) separately - the "common use" would then have to be read that "handguns in subclass of G4, which are common in all other states, cannot be banned."

The state must decide whether G3 and G4 are the same (cannot ban G4 because it's the same as the permitted G3) or are different (must allow G4 because that particular class is in common use everywhere else). Either way the roster appears unreasonable.
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  #102  
Old 11-06-2013, 1:51 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
The first amendment is an enumerated constitutional right. (Presumably the Heller majority is aware of this.)

Intermediate scrutiny has been applied to the first amendment. (Presumably the Heller majroity is aware of this too.)

The Heller majority "know[s] of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach" i.e. method of "decid[ing] on a case-by-case basis whether the right is really worth insisting upon."

Ergo, the Heller majority does not consider intermediate scrutiny (or strict scrutiny for that matter) to be "a freestanding 'interest-balancing' approach."
Tell me: what are the operative differences between the "interest balancing" test that Breyer was proposing (and which the Supreme Court rejected) and the various methods of scrutiny that have been employed by the Supreme Court? This question is especially relevant as regards strict scrutiny.



Quote:
I get that you think all forms of scrutiny are balancing tests, methods of deciding on a case by case basis, etc.
Either scrutiny methods are used to decide on a case by case basis whether the right is really worth insisting upon, or they're not. You claim they're not. On what basis do you make this claim other than the inane assertion that SCOTUS would never contradict itself?
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  #103  
Old 11-06-2013, 3:21 PM
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Further, if the "equivalency of handguns" as a hypothesis is to stand (implying that one is a good as the next and that G3 and G4 Glocks are essentially the same), then the roster should actually be struck down as there is no compelling reason to ban G4 while the equivalent G3 is allowed to stand (in the assumed equivalency G4 is no more dangerous than G3). If the argument is that the LCI, magazine disconnect and microstamping make G4 fundamentally different from G3 from the safety perspective, then the roster should again be stricken down as it bans the very common subclass of handguns to which G4 belongs, but G3 doesn't. In this case the "common use" would apply to subclass of G3 (allegedly safe) and subclass G4 (allegedly unsafe) separately - the "common use" would then have to be read that "handguns in subclass of G4, which are common in all other states, cannot be banned."

The state must decide whether G3 and G4 are the same (cannot ban G4 because it's the same as the permitted G3) or are different (must allow G4 because that particular class is in common use everywhere else). Either way the roster appears unreasonable.
I'll play Devil's Advocate; read the following with that in mind. Also, I'm going to be terse.

- the state has the power to regulate consumer goods, wrt safety.

- firearms are consumer goods.

- the state has determined that a mag disconnect and an LCI are desireable safety features for semi auto handguns

- the state has not invented these features; they arose spontaneously in pistol designs over the last 100 years

- the state has decided that all new handgun models to be sold in CA must have these features.

- CA is a large market, 30+ million persons, so manufactures will create product specifically for this market ( example, current SIG CA models, certain CA designed rifles equipped w/BB, etc - are all currently available for purchase )

- the state realizes that such changes will not occur overnight, so pistols that are already on the roster are allowed to remain. The expectation is that, over time, manufacturers will replace these firearms with versions that incorporate the new safety requirements. This balances the need that citizens have today for defensive pistols, with the state's long term goal of increasing product safety.

I imagine that the state can come up with examples outside of the firearm domain where safety changes have been mandated, showing that firearms are not being singled out for special attention.

: shrug :

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  #104  
Old 11-06-2013, 3:40 PM
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That is why the Statist or Collective view is so dangerous because it is insidiously open-ended and will have no end to which it can be applied to control human behavior, in the end it will lead to tyranny, human history teaches this simple fact.


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Originally Posted by elSquid View Post
I'll play Devil's Advocate; read the following with that in mind. Also, I'm going to be terse.

- the state has the power to regulate consumer goods, wrt safety.

- firearms are consumer goods.

- the state has determined that a mag disconnect and an LCI are desireable safety features for semi auto handguns

- the state has not invented these features; they arose spontaneously in pistol designs over the last 100 years

- the state has decided that all new handgun models to be sold in CA must have these features.

- CA is a large market, 30+ million persons, so manufactures will create product specifically for this market ( example, current SIG CA models, certain CA designed rifles equipped w/BB, etc - are all currently available for purchase )

- the state realizes that such changes will not occur overnight, so pistols that are already on the roster are allowed to remain. The expectation is that, over time, manufacturers will replace these firearms with versions that incorporate the new safety requirements. This balances the need that citizens have today for defensive pistols, with the state's long term goal of increasing product safety.

I imagine that the state can come up with examples outside of the firearm domain where safety changes have been mandated, showing that firearms are not being singled out for special attention.

: shrug :

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  #105  
Old 11-06-2013, 3:44 PM
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Scrutiny is not, strictly speaking, about choosing on a case by case basis, it is about choosing on a law by law basis, and a generic act basis. That is, for the most part scrutiny is a facial challenge, not merely as applied. As applied is 'on a case by case basis'.

First, what rights, if any, does the law limit.
Second, what aspects of these rights are limited, and how close to the core of the right are they.
How this second part becomes a particular level of scrutiny is so far a black box... That and who/what determines 'how core to the right' the aspect of the right that is limited is another point of debate. But they are the important parts.
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Old 11-06-2013, 4:25 PM
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That is why the Statist or Collective view is so dangerous because it is insidiously open-ended and will have no end to which it can be applied to control human behavior, in the end it will lead to tyranny, human history teaches this simple fact.
Personally, I think a more fruitful approach would be to attack the 'safety' features - LCI/mag disconnect - and their efficacy.

Example: we've all heard of scenarios where a young child gains access to a striker fired gun and unfortunantly shoots themself or another.

Responsible owners would not leave such a firearm in said condition unattended in the first place, so these safety features are not really applicable there.

Irresponsible owners are unlikely to safe the firearm; the magazine will be in place and the firearm loaded.

Which of these firearms are 'more' dangerous in the scenario given:

a) a striker-fired polymer gun with no external safety that has an LCI and a mag disconnect?

b) a 1911 without LCI/disco but with a grip safety that must be depressed and a manual safety that must be flicked off to fire?

c) an H&K P7 with a squeeze cocker that requires a solid grip to overcome?

d) a DA/SA pistol that requires a heavy DA initial trigger pull?

Of the four, I think most would agree that the 'state-approved' option is the one that is most easily fired by a child.

That's a logical argument. Can it be made into a legal one?

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  #107  
Old 11-06-2013, 4:32 PM
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Scrutiny is not, strictly speaking, about choosing on a case by case basis, it is about choosing on a law by law basis, and a generic act basis. That is, for the most part scrutiny is a facial challenge, not merely as applied. As applied is 'on a case by case basis'.
But the application of the "interest balancing" test in Breyer's dissent wasn't what SCOTUS rejected, it was the test itself that they rejected.
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Old 11-06-2013, 4:43 PM
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kcbrown,

You are arguing with a Statist. Just like the Congress believes the Commerce Clause gives them Carte Blanche, Fabio, he/she, believes that Government can and does infringe on any Right they choose, whenever they choose, the old 1st Amendment game.

The bottom line with the Fabio mentality there really is no reason for a Bill of Rights or Constitution because all Rights and Power emanates from the Government/State and can be curtailed when the mood strikes.
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Not sure I'd really agree here.

FGG seems to have a very good understanding of how the courts (and, I suppose, lawyers) view the issues and cases under discussion.

He tells us how the courts will view such things and he is typically pretty correct.

Knowing and explaining how the courts will view a situation (and even thinking that it is logical based on the law) is not necessarily the same thing as believing that this is how things ought to be.
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Old 11-06-2013, 4:49 PM
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- the state has decided that all new handgun models to be sold in CA must have these features.
It's this decision that is arbitrary and capricious.

Consider Glocks. Either G3 is more dangerous than G4 and should NOT be grandfathered in, or G3 and G4 are about the same and G4 should NOT be banned.

In fact, the state should have not only banned transfer of G3-s, but the possession as well. That's the only consistent position if G3-s are truly unsafe. This would be by far the preferred solution since they would have an extremely high burden to clear to justify a confiscation.

If the extra features are not really about safety, but are about a soft policy where the state only believes it would be "a good idea", it can pass the Rational Basis test and not much more. This is insufficient for a protected right, particularly when the extra features are not common in modern firearms and are indeed used to limit supply in CA. Not to mention that microstamping doesn't exist, so requiring this particular feature might not even pass the Rational Basis.
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Old 11-06-2013, 5:04 PM
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You claim they're not.
No, I'm not making that claim.

I've already quoted the text where the Heller majority identifies the particular aspect of the dissent's "judge-empowering 'interest balancing inquiry'" that differentiates that inquiry from the traditionally expressed levels of scrutiny.
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Old 11-06-2013, 5:11 PM
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FGG seems to have a very good understanding of how the courts (and, I suppose, lawyers) view the issues and cases under discussion.
FGG is indeed very proficient with the legal procedure to the point that he/she appears much more like a judge than an attorney. However, this same attention to detail *within* the current framework precludes FGG from accounting for paradigm shifting effects that come from the *outside* of the framework.

If it were sufficient to understand the system and analyze each case to come to an agreement as it would be in, e.g., science, we would never have circuit splits or dissenting opinions. Since we know that dissenting judges are not just "stupid" for not seeing the cases the "right way," there is more at work than the code of civil procedure.

So, I would pay a lot of attention to FGG's analysis of cases up to about the level of Court of Appeals, but when it comes to CA/SCOTUS I would also want to hear competing analyses.
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Old 11-06-2013, 5:19 PM
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But the application of the "interest balancing" test in Breyer's dissent wasn't what SCOTUS rejected, it was the test itself that they rejected.
Are you sure we're disagreeing here ? An "interest balancing test" is not a question of scrutiny. There seems to be some confusion about that... Scrutiny applies to law. Other tests may apply to cases, but scrutiny does not. An "interest balancing test" sounds like something that may apply on a case by case basis, which was in fact rejected by the court.
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Old 11-06-2013, 5:45 PM
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No, I'm not making that claim.

I've already quoted the text where the Heller majority identifies the particular aspect of the dissent's "judge-empowering 'interest balancing inquiry'" that differentiates that inquiry from the traditionally expressed levels of scrutiny.
Here's the text you quoted:

Quote:
Originally Posted by District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2821
He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.”
But the text of Breyer's that they cite is this:

Quote:
Originally Posted by District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2851 - 2852
Indeed, adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a "primary concern of every government—a concern for the safety and indeed the lives of its citizens." United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The Court has deemed that interest, as well as "the Government's general interest in preventing crime," to be "compelling," see id., at 750, 754, 107 S.Ct. 2095, and the Court has in a wide variety of constitutional contexts found such public-safety concerns sufficiently forceful to justify restrictions on individual liberties, see e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam) (First 2852*2852 Amendment free speech rights); Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (First Amendment religious rights); Brigham City v. Stuart, 547 U.S. 398, 403-404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (Fourth Amendment protection of the home); New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)); Salerno, supra, at 755 (Eighth Amendment bail rights). Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.

I would simply adopt such an interest-balancing inquiry explicitly.
The Supreme Court does not object to Breyer's description of strict scrutiny here. Instead, they object to the adoption of the inquiry he calls out as being the very same inquiry that is used when applying strict scrutiny.

Therefore, by objecting to Breyer's insistence upon using the methods of strict scrutiny, the court is ipso facto objecting to the use of strict scrutiny itself. Because to claim otherwise is to claim that the Supreme Court is objecting to the fact that the interest balancing inquiry isn't being called one of the "traditionally expressed levels", that they object merely to the fact that Breyer is divorcing what scrutiny does from what it's called.


There are only three ways you can now go here, and that is either to admit that the Supreme Court contradicted itself within its own decision, or to admit that the Supreme Court means to reject all forms of testing (which include the traditional methods of scrutiny) that are used to "decide, on a case by case basis, whether the right is really worth insisting upon", or to admit that the Supreme Court doesn't mean what it says. The fact that the Court has reversed itself in the past both in terms of entire decisions as well as bits and pieces thereof makes the second option possible.
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Old 11-06-2013, 5:50 PM
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Are you sure we're disagreeing here ? An "interest balancing test" is not a question of scrutiny. There seems to be some confusion about that... Scrutiny applies to law.
But interest balancing is merely a means of balancing one interest against another. The interest of government is one, whilst the interest of the citizenry in exercising a right is another. Scrutiny pits these two against each other in the context of deciding whether or not the law should stand.


Quote:
Other tests may apply to cases, but scrutiny does not. An "interest balancing test" sounds like something that may apply on a case by case basis, which was in fact rejected by the court.
But the inquiry Breyer would perform is that of whether the law should stand in the face of its imposition upon the right. That is a question of application to the law itself.
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Old 11-06-2013, 5:59 PM
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The Supreme Court does not object to Breyer's description of strict scrutiny here.
The majority absolutely does object to that description, in the same quote I linked to...where they directly quote Breyer.
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Old 11-06-2013, 6:02 PM
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In fact, the state should have not only banned transfer of G3-s, but the possession as well. That's the only consistent position if G3-s are truly unsafe. This would be by far the preferred solution since they would have an extremely high burden to clear to justify a confiscation.
Are there any examples of a ban and confiscation for a non-Constitutionally protected consumer good on the basis of safety here in the PRC? Does that ever happen? What about 3-wheeled ATVs...what happened there?

A somewhat goofy example to consider is the foie gras/force feeding ban. Banned because of cruelty to animals, but with a grace period to allow the market to adapt. It was 'still cruel' after the law was passed, but force feeding was still allowed for a period of time.

What about CA emissions laws? Were there any instances of cars being banned and confiscated due to the laws, or did the state proceed with the assumption that, over time, new cars that satisfied more stringent requirements would displace older, polluting cars already in existence?

Does the state generally realize that change doesn't occur overnight?

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Originally Posted by IVC View Post
If the extra features are not really about safety, but are about a soft policy where the state only believes it would be "a good idea", it can pass the Rational Basis test and not much more. This is insufficient for a protected right, particularly when the extra features are not common in modern firearms and are indeed used to limit supply in CA.
The largest handgun manufacturers in the country, S&W and Ruger, offer a variety of pistols in different calibers and sizes that have a mag disconnect and an LCI. So clearly the manufacturers can and have responded to the safety requirements. Consumers can buy any of these new models or any of the grandfathered ones on the roster.

Can safety requirements satisfy intermediate scrutiny? Don't know, as like most people on the forum I don't really have a true understanding of how intermediate has been applied across the body of law. The more I learn about conlaw, the greater the appreciation that I have that the world doesn't work in the manner that I previously thought it did.

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Not to mention that microstamping doesn't exist, so requiring this particular feature might not even pass the Rational Basis.
Hard to say, different kettle of fish.

-- Michael
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  #117  
Old 11-06-2013, 6:40 PM
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The majority absolutely does object to that description, in the same quote I linked to...where they directly quote Breyer.
What they directly quoted was not Breyer's description of strict scrutiny. Breyer's description is the bit of text I bolded, and that does not appear to be quoted by the majority in any part of the decision.

I see nothing in the majority's decision that shows that they object to that description, only that they object to the application of what is described.
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  #118  
Old 11-06-2013, 6:48 PM
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The majority absolutely does object to that description, in the same quote I linked to...where they directly quote Breyer.
Let's suppose they do object to that description (i.e., the bit of Breyer's dissent that I bolded).

In what way is that description incorrect?
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  #119  
Old 11-06-2013, 9:10 PM
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I'll play Devil's Advocate; read the following with that in mind. Also, I'm going to be terse.

- the state has the power to regulate consumer goods, wrt safety.

- firearms are consumer goods.

- the state has determined that a mag disconnect and an LCI are desireable safety features for semi auto handguns

- the state has not invented these features; they arose spontaneously in pistol designs over the last 100 years

- the state has decided that all new handgun models to be sold in CA must have these features.

- CA is a large market, 30+ million persons, so manufactures will create product specifically for this market ( example, current SIG CA models, certain CA designed rifles equipped w/BB, etc - are all currently available for purchase )

- the state realizes that such changes will not occur overnight, so pistols that are already on the roster are allowed to remain. The expectation is that, over time, manufacturers will replace these firearms with versions that incorporate the new safety requirements. This balances the need that citizens have today for defensive pistols, with the state's long term goal of increasing product safety.

I imagine that the state can come up with examples outside of the firearm domain where safety changes have been mandated, showing that firearms are not being singled out for special attention.

: shrug :

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Still catching up with the thread but this was nicely done elSquid. A fine devil's advocating. Hopefully we can counter this!
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Old 11-06-2013, 9:16 PM
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The more I learn about conlaw, the greater the appreciation that I have that the world doesn't work in the manner that I previously thought it did.
Damn, ain't that the truth
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