Calguns.net  

Home My iTrader Join the NRA Donate to CGSSA Sponsors CGN Google Search
CA Semiauto Ban(AW)ID Flowchart CA Handgun Ban ID Flowchart CA Shotgun Ban ID Flowchart
Go Back   Calguns.net > POLITICS, LITIGATION AND ACTIVISM > 2nd Amend. Litigation Updates & Legal Discussion
Register FAQ Members List Calendar Mark Forums Read

2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

Reply
 
Thread Tools Display Modes
  #121  
Old 11-06-2013, 8:43 PM
hardlyworking hardlyworking is offline
Senior Member
 
Join Date: Jan 2013
Posts: 1,077
iTrader: 0 / 0%
Default

Quote:
Originally Posted by Glock Brief
Rather, the burden is in depriving them of access to newer pistol models in common use by “law-abiding citizens for lawful purposes” in other states, Heller, 554 U.S. at 625, 627, based on nothing more than the government’s opinion as to the importance of uncommon features that will still be absent from a host of grandfathered pistols sold in California in any event. Given that context, the burden is certainly substantial when compared to a minimal government interest inconsistently pursued.
That is a damn convincing bit of argument there. Please work!
Reply With Quote
  #122  
Old 11-06-2013, 11:29 PM
Sgt Raven's Avatar
Sgt Raven Sgt Raven is offline
Veteran Member
 
Join Date: Dec 2005
Location: 85/101
Posts: 2,679
iTrader: 26 / 100%
Default

Quote:
Originally Posted by elSquid View Post
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?



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.



Hard to say, different kettle of fish.

-- Michael
Well Construction and Farm Equipment plus OTR Big Rig Trucks CARB has forced Companies to update their older equipment, either with new smog controls or newer equipment....
__________________

...... you cant have no idea how little I care "

Monte (Tom Selleck) - 'Monte Walsh'

"It's not always being fast or even accurate that counts, it's being willing. I found out early that most men, regardless of cause or need, aren't willing. They blink an eye or draw a breath before they pull the trigger--and I won't."

John Wayne as John Bernard (J. B.) Books in The Shootist
Reply With Quote
  #123  
Old 11-07-2013, 7:45 AM
Californio Californio is offline
CGN/CGSSA Contributor - Lifetime
CGN Contributor - Lifetime
 
Join Date: Dec 2006
Location: So. Cal
Posts: 3,675
iTrader: 3 / 100%
Default

Because Fabio he/she is a Statist. Look, Law is not logical it is Sociological. If it were logical 2+2 would always equal 4 but it doesn't. It is not science.

Humans have a propensity to Rationalize their Behavior and their Laws reflect this all through History.

Example : Slavery, Suspension of Habeas Corpus, Internment of Japanese Americans, Curfews for German Americans, Homosexuality and Gitmo quickly come to mind.

The current Philosophy of Law is a statist position, that is how the law is being Sociologically manipulated.

I do not agree with the Statist position but I understand it.

If Fabio's claim to Fame is to analyze the Court and prognosticate what Statist manipulation they will use to get their way, so be it - nothing really novel.

The genius is to try and find a way around the Statist Mindset.

I watch two shows "Life below Zero" and "Yukon Men", you see AR-15's and standard capacity magazines, as prized arms, as well as other firearms. Nice to know that an AR-15 will function below zero. Anyway these people live in a Natural Environment and are just another member of the food chain. Their Society revolves around hunting and gathering so they would be adverse to the Statist Agenda and the laws they champion. They need protection from the Bear and Wolf.

Now in the Urban Jungle we have Bear and Wolf in the form of Hardened Gang Members and Hard Drug Users. The City Sissy Statists like to believe that their Police is all we need for protection from the bear and wolf and we don't have need to protect ourselves. Well unless they successfully develop Pre-Crime, the Police are an after the fact response force to a life threatening event.

Their Police are not burdened by arbitrary controls on what tools can be used as a form of defense against the bear and wolf and neither should we have such restrictions.

It is true the mentally ill are the threat, in a Natural Environment the mentally ill simply perish as food to the bear and wolf. In the City they commit henious crime and suicide by their own hand or police.

So the Statist Agenda is to remove all firearms from society, to prevent the heinous crime of the mentally ill but leave us vunerable to the bear and wolf.

I would rather the Statist build a mechanism for the treatment of the mentally ill, which they really seem to avoid like the plague and leave me Free to deal with the Bear and Wolf, if and when they threaten my family.










Quote:
Originally Posted by OleCuss View Post
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.
__________________
"I said I never had much use for one. Never said I didn't know how to use it." Matthew Quigley

Last edited by Californio; 11-07-2013 at 7:48 AM..
Reply With Quote
  #124  
Old 11-07-2013, 8:10 AM
tabrisnet tabrisnet is offline
Senior Member
 
Join Date: Nov 2010
Location: Detroit, formerly Mountain View CA
Posts: 530
iTrader: 0 / 0%
Default

Quote:
Originally Posted by kcbrown View Post
Quote:
Originally Posted by tabrisnet View Post
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.


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.
First, yes, he is asking that. But he also has rejected the [free standing] interest balancing test.

My read of scrutiny is that there aren't 3 tests. there is 1. The level of scrutiny is the _result_ of the test. Almost any law passes rational basis, unless a protected class is covered. Intermediate scrutiny is merely a heightened rational basis. Potentially a distinction without a difference.
Almost no law passes strict scrutiny.
  • rational basis - does the government have an interest, and do they have a reason for passing this law. Since "Because I think it will make children safer" is a reason, there's not much suport needed on this basis. But it is the reason for various "statements of fact" that go into bills introductions
  • intermediate scrutiny - do they have reason, and does it infringe upon the right to a significant degree.
  • strict scrutiny - does it infringe on the right? Well, OFF WITH THE LAW'S HEAD!
__________________
Life SAF Member
Life GOA Member
EFF Member
x7
Reply With Quote
  #125  
Old 11-07-2013, 8:38 AM
FABIO GETS GOOSED!!!'s Avatar
FABIO GETS GOOSED!!! FABIO GETS GOOSED!!! is offline
Veteran Member
 
Join Date: Feb 2006
Location: Beverly Hills, California
Posts: 2,823
iTrader: 0 / 0%
Default

Quote:
Originally Posted by kcbrown View Post
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.
What the dissent says in the text bolded by you is another way of saying the same thing he says in the text quoted by the majority. Both describe the dissent's "'proportionality' approach" and it is the dissent who labels that approach an "interest-balancing inquiry." The dissent puts the proportionality approach in a nutshell here:

Quote:
Originally Posted by Heller dissent
The ultimate question is whether the statute imposes burdens that, when viewed in light of the statute’s legitimate objectives, are disproportionate.
The majority doesn't have to cite or quote every iteration of this "interest-balancing inquiry" to preserve its objection to all of them.

Last edited by FABIO GETS GOOSED!!!; 11-07-2013 at 9:23 AM..
Reply With Quote
  #126  
Old 11-07-2013, 8:40 AM
FABIO GETS GOOSED!!!'s Avatar
FABIO GETS GOOSED!!! FABIO GETS GOOSED!!! is offline
Veteran Member
 
Join Date: Feb 2006
Location: Beverly Hills, California
Posts: 2,823
iTrader: 0 / 0%
Default

Quote:
Originally Posted by kcbrown View Post
In what way is that description incorrect?
"Incorrect" in the sense of "your answers to the math homework are incorrect according to the teacher's guide which has the correct answers"?

Last edited by FABIO GETS GOOSED!!!; 11-07-2013 at 8:44 AM..
Reply With Quote
  #127  
Old 11-07-2013, 9:10 AM
REH's Avatar
REH REH is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Feb 2009
Location: Sacramento
Posts: 1,327
iTrader: 29 / 100%
Default

Quote:
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 :

-- Michael
You forgot to address two items…………

If a handgun is not on the “safe roster”, it is considered unsafe and cannot be sold retail in California. This unsafe gun can be sold to LEO and used in their course of duty. If it is not safe for one group, then is it not safe for all, groups, correct?

If this roster is addressing safety, then how will micro stamping make the handgun safer?
Reply With Quote
  #128  
Old 11-07-2013, 9:45 AM
OleCuss OleCuss is offline
Calguns Addict
 
Join Date: Jun 2009
Location: Kalifornia
Posts: 6,232
iTrader: 0 / 0%
Default

Quote:
Originally Posted by Californio View Post
Because Fabio he/she is a Statist. Look, Law is not logical it is Sociological. If it were logical 2+2 would always equal 4 but it doesn't. It is not science.

Humans have a propensity to Rationalize their Behavior and their Laws reflect this all through History.

Example : Slavery, Suspension of Habeas Corpus, Internment of Japanese Americans, Curfews for German Americans, Homosexuality and Gitmo quickly come to mind.

The current Philosophy of Law is a statist position, that is how the law is being Sociologically manipulated.

I do not agree with the Statist position but I understand it.

If Fabio's claim to Fame is to analyze the Court and prognosticate what Statist manipulation they will use to get their way, so be it - nothing really novel.

The genius is to try and find a way around the Statist Mindset.

I watch two shows "Life below Zero" and "Yukon Men", you see AR-15's and standard capacity magazines, as prized arms, as well as other firearms. Nice to know that an AR-15 will function below zero. Anyway these people live in a Natural Environment and are just another member of the food chain. Their Society revolves around hunting and gathering so they would be adverse to the Statist Agenda and the laws they champion. They need protection from the Bear and Wolf.

Now in the Urban Jungle we have Bear and Wolf in the form of Hardened Gang Members and Hard Drug Users. The City Sissy Statists like to believe that their Police is all we need for protection from the bear and wolf and we don't have need to protect ourselves. Well unless they successfully develop Pre-Crime, the Police are an after the fact response force to a life threatening event.

Their Police are not burdened by arbitrary controls on what tools can be used as a form of defense against the bear and wolf and neither should we have such restrictions.

It is true the mentally ill are the threat, in a Natural Environment the mentally ill simply perish as food to the bear and wolf. In the City they commit henious crime and suicide by their own hand or police.

So the Statist Agenda is to remove all firearms from society, to prevent the heinous crime of the mentally ill but leave us vunerable to the bear and wolf.

I would rather the Statist build a mechanism for the treatment of the mentally ill, which they really seem to avoid like the plague and leave me Free to deal with the Bear and Wolf, if and when they threaten my family.
Wow!!! Thank you for all that.

But I'm still not at all convinced that FGG is, himself, a statist.

I know there are questions out there, but I happen to think that FGG wants to advance liberty. He sometimes sounds sorta like he doesn't, but that is usually in the context of conveying to us bad news about how the courts are going to view things.

It is entirely possible I'm more pro-RKBA than FGG is, but I'd not count on it.

Net effect is that I believe that FGG is on the side of liberty. I think he finds it amusing to tweak a bunch of us, but if you really pay attention to what he and NIR say - you learn stuff.
__________________
CGN's token life-long teetotaling vegetarian. Not qualified to give any legal opinion so pay attention at your own risk.
Reply With Quote
  #129  
Old 11-07-2013, 9:56 AM
sholling's Avatar
sholling sholling is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Sep 2007
Posts: 10,246
iTrader: 2 / 100%
Default

Quote:
Originally Posted by REH View Post
You forgot to address two items…………

If a handgun is not on the “safe roster”, it is considered unsafe and cannot be sold retail in California. This unsafe gun can be sold to LEO and used in their course of duty. If it is not safe for one group, then is it not safe for all, groups, correct?
I believe you're asking about a 14th Amendment equal protection challenge. As Orwell said "All animals are equal, but some animals are more equal than others", and in this country the ruling class and their minions are generally considered more equal than we in the peasant class and thus not subject to the same rules. That Orwellian "All animals are equal, but some animals are more equal than others" description of "equal" seems to satisfy the requirements of the equal protection clause in the eyes of most judges and nearly all legislators (who along with LEOs, benefit from their "more equal" class status).
__________________
"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT--

Proud Life Member: National Rifle Association and the Second Amendment Foundation.

Disappointed Life Member: California Rifle & Pistol Association

Last edited by sholling; 11-07-2013 at 10:47 AM..
Reply With Quote
  #130  
Old 11-07-2013, 10:00 AM
curtisfong's Avatar
curtisfong curtisfong is online now
Calguns Addict
 
Join Date: Jan 2009
Posts: 5,492
iTrader: 9 / 100%
Default

For all his faults, I don't believe FGG is a statist. He almost always constrains his comments to things as they are, not as they should be.
__________________
The Rifle on the Wall

"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamela Harris

Lawyers and their Stockholm Syndrome
Reply With Quote
  #131  
Old 11-07-2013, 10:03 AM
sholling's Avatar
sholling sholling is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Sep 2007
Posts: 10,246
iTrader: 2 / 100%
Default

Quote:
Originally Posted by OleCuss View Post
Wow!!! Thank you for all that.

But I'm still not at all convinced that FGG is, himself, a statist.

I know there are questions out there, but I happen to think that FGG wants to advance liberty. He sometimes sounds sorta like he doesn't, but that is usually in the context of conveying to us bad news about how the courts are going to view things.

It is entirely possible I'm more pro-RKBA than FGG is, but I'd not count on it.

Net effect is that I believe that FGG is on the side of liberty. I think he finds it amusing to tweak a bunch of us, but if you really pay attention to what he and NIR say - you learn stuff.
I tend to agree. FGG's predictions can be frustrating and even infuriating reading but his predictions seem to come true more often than not. I sometimes wonder what a pro 2nd Amendment case brought by FGG would look like. I suspect that it would be extremely well thought out, that every contingency and argument would be addressed, that every "i" would be dotted and every "t" would be crossed, and that there would be little wiggle room left for either the defense or the judge. I'm not sure he'd take such a case but it would be interesting to observe.
__________________
"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT--

Proud Life Member: National Rifle Association and the Second Amendment Foundation.

Disappointed Life Member: California Rifle & Pistol Association
Reply With Quote
  #132  
Old 11-07-2013, 10:47 AM
curtisfong's Avatar
curtisfong curtisfong is online now
Calguns Addict
 
Join Date: Jan 2009
Posts: 5,492
iTrader: 9 / 100%
Default

Quote:
Originally Posted by sholling View Post
I sometimes wonder what a pro 2nd Amendment case brought by FGG would look like. I suspect that it would be extremely well thought out, that every contingency and argument would be addressed, that every "i" would be dotted and every "t" would be crossed, and that there would be little wiggle room left for either the defense or the judge. I'm not sure he'd take such a case but it would be interesting to observe.
Ditto. But honestly, I don't think there is any 2A case he would bring, since I think he wouldn't knowingly bring a case he couldn't argue flawlessly.
__________________
The Rifle on the Wall

"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamela Harris

Lawyers and their Stockholm Syndrome
Reply With Quote
  #133  
Old 11-07-2013, 11:18 AM
Californio Californio is offline
CGN/CGSSA Contributor - Lifetime
CGN Contributor - Lifetime
 
Join Date: Dec 2006
Location: So. Cal
Posts: 3,675
iTrader: 3 / 100%
Default

Learn Stuff?

What briefs has FGG or NIR filed on our behalf?

What cases have they consulted on?

Has anything by either one of them enriched us in the courtroom?

Liberty, then support it, if you have the training to do so.


The Carnival Amusement of the Internet does not win cases or provide information to win cases.

Yes, playing with us in the sand box.

In reality nothing they say means anything.



Law is like a flag it waves in the wind, going left and right depending on the Social Stomach for it.

Once in a great while we are shocked by the outcome.

https://en.wikipedia.org/wiki/United...v._The_Amistad

Against all odds the correct decision was reached.

Can you imagine a body of Law that supported the owning of Human Beings.

Nothing rational or logical about that except Human Greed and Depravity.



Between 1983 and 2006 I bought one firearm and thought all was rational and sane in California.

In 2006 I desired to purchase a S&W Model 29-2 in 6.5", made in the 1970's, and sadly found out that unless I could find someone in California to sell me theirs PPT, I was SOL.

Because this revolver is not on an Arbitrary Bureaucratic List?

I was prohibited from importing one into California. A six shot revolver that weights 45oz+-. Highly concealable and very dangerous, if it drops on your foot.

Really, laws like this one need to fall.

So if FGG is for Liberty and against bad law, I expect an Amicus Brief.

Lots of Laughs














Quote:
Originally Posted by OleCuss View Post
Wow!!! Thank you for all that.

But I'm still not at all convinced that FGG is, himself, a statist.

I know there are questions out there, but I happen to think that FGG wants to advance liberty. He sometimes sounds sorta like he doesn't, but that is usually in the context of conveying to us bad news about how the courts are going to view things.

It is entirely possible I'm more pro-RKBA than FGG is, but I'd not count on it.

Net effect is that I believe that FGG is on the side of liberty. I think he finds it amusing to tweak a bunch of us, but if you really pay attention to what he and NIR say - you learn stuff.
__________________
"I said I never had much use for one. Never said I didn't know how to use it." Matthew Quigley
Reply With Quote
  #134  
Old 11-07-2013, 11:26 AM
SC_SD SC_SD is offline
Chief Dispeller of FUD
CGN Contributor
 
Join Date: Jan 2013
Posts: 198
iTrader: 4 / 100%
Default

Quote:
Originally Posted by Californio View Post
Really, laws like this one need to fall.
FIFY.

If you have a serious point, how can anyone address it with 500 non sequiturs coming in from every direction?

Quote:
Originally Posted by Californio View Post
So if FGGXYZ calguns poster is for Liberty and against bad law, I expect an Amicus Brief.
"LOL", likewise
__________________
_____________
Reply With Quote
  #135  
Old 11-07-2013, 11:36 AM
OleCuss OleCuss is offline
Calguns Addict
 
Join Date: Jun 2009
Location: Kalifornia
Posts: 6,232
iTrader: 0 / 0%
Default

You have to understand, FGG appears to have a life and work outside of filing the kinds of strategic RKBA cases we would like to see. I don't know exactly what that life and work consist of, but he has stated previously (in somewhat general terms) why he is not going to be doing things like consulting for CGF. FGG seems to cherish his limited anonymity and I think that should be respected.

I also think that a little vagueness in FGG's opinions on the merits of the basic beliefs about the RKBA is also wise for a variety of reasons. Why I think so is a bit complex and if asked why I think that, I'm going to flat out refuse to even try to explain it.

NIR? That is a somewhat different case. He (I assume it's a "he") seems very competent and it would not surprise me at all to discover that he is doing things in firearms litigation which you and I either don't know about - or don't know that it is NIR who is doing it. Don't underestimate NIR - seems to me to be very competent and capable of flying well under the radar in very effective ways.

NIR and FGG may both be very competent, but I think they may vary dramatically in what they can, should, or would do in terms of firearms litigation.

And do understand that I do not know the real name of either of them or exactly what they do.
__________________
CGN's token life-long teetotaling vegetarian. Not qualified to give any legal opinion so pay attention at your own risk.
Reply With Quote
  #136  
Old 11-07-2013, 11:57 AM
kcbrown's Avatar
kcbrown kcbrown is offline
Calguns Addict
 
Join Date: Apr 2009
Posts: 8,203
iTrader: 1 / 100%
Default

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
What the dissent says in the text bolded by you is another way of saying the same thing he says in the text quoted by the majority. Both describe the dissent's "'proportionality' approach" and it is the dissent who labels that approach an "interest-balancing inquiry."
Is it the same thing he says in the text quoted by the majority? How?

Where in the bolded text is there any reference whatsoever to "proportionality"?

I'll quote the relevant bit again for reference:

Quote:
Originally Posted by District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2852
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.
So again I must ask: in what way is the above an incorrect description of strict scrutiny, particularly as applied to gun regulations? It is not enough to assert that the above is the same as the bit that the majority quoted, you have to show that it is. But more than that, you have to show how the above is not the same as strict scrutiny when applied to gun laws.


Quote:
The majority doesn't have to cite or quote every iteration of this "interest-balancing inquiry" to preserve its objection to all of them.
But that's the point here: the iteration in question is called out as being identical to one of the traditional forms that they use. If they object to all of those iterations, then that obviously includes the iterations that are identical to the traditional form(s). And the problem here is that objection to something that is identical to those traditional forms is the same as objecting to those traditional forms.

The only way the iteration I quoted above can be safely objected to is if it is not identical to one of the traditional forms. But the majority does not raise any explicit objection to the characterization of the iteration in question as being identical to a traditional form, nor do I see anywhere that it has provided any means by which one could implicitly object to that characterization.


Breyer's description of strict scrutiny as applied to gun laws appears to be accurate. Absent a substantive argument that it is not (one that relies on more than mere argument by assertion), since the majority objects to the use of the method in that description, the only logical conclusion that one can arrive at is that one of three things must be true:

  1. The Supreme Court is contradicting itself in its own opinion.
  2. The Supreme Court admonishes against the use of scrutiny for, at the very least, 2nd Amendment cases.
  3. The Supreme Court doesn't mean what it says.

Which is it?
__________________
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

Last edited by kcbrown; 11-07-2013 at 12:02 PM..
Reply With Quote
  #137  
Old 11-07-2013, 12:04 PM
kcbrown's Avatar
kcbrown kcbrown is offline
Calguns Addict
 
Join Date: Apr 2009
Posts: 8,203
iTrader: 1 / 100%
Default

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
"Incorrect" in the sense of "your answers to the math homework are incorrect according to the teacher's guide which has the correct answers"?
No. Incorrect in the sense of not being a match with the actual, real-world application of strict scrutiny to gun regulations and other similar regulations where the state cites public safety as its compelling interest.
__________________
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.
Reply With Quote
  #138  
Old 11-07-2013, 12:16 PM
tabrisnet tabrisnet is offline
Senior Member
 
Join Date: Nov 2010
Location: Detroit, formerly Mountain View CA
Posts: 530
iTrader: 0 / 0%
Default

Quote:
Originally Posted by kcbrown View Post
Is it the same thing he says in the text quoted by the majority? How?

Where in the bolded text is there any reference whatsoever to "proportionality"?

I'll quote the relevant bit again for reference:

Quote:
Originally Posted by District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2852
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.
So again I must ask: in what way is the above an incorrect description of strict scrutiny, particularly as applied to gun regulations? It is not enough to assert that the above is the same as the bit that the majority quoted, you have to show that it is. But more than that, you have to show how the above is not the same as strict scrutiny when applied to gun laws.

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
The majority doesn't have to cite or quote every iteration of this "interest-balancing inquiry" to preserve its objection to all of them.
But that's the point here: the iteration in question is called out as being identical to one of the traditional forms that they use. If they object to all of those iterations, then that obviously includes the iterations that are identical to the traditional form(s). And the problem here is that objection to something that is identical to those traditional forms is the same as objecting to those traditional forms.

The only way the iteration I quoted above can be safely objected to is if it is not identical to one of the traditional forms. But the majority does not raise any explicit objection to the characterization of the iteration in question as being identical to a traditional form, nor do I see anywhere that it has provided any means by which one could implicitly object to that characterization.


Breyer's description of strict scrutiny as applied to gun laws appears to be accurate. Absent a substantive argument that it is not (one that relies on more than mere argument by assertion), since the majority objects to the use of the method in that description, the only logical conclusion that one can arrive at is that one of three things must be true:

  1. The Supreme Court is contradicting itself in its own opinion.
  2. The Supreme Court admonishes against the use of scrutiny for, at the very least, 2nd Amendment cases.
  3. The Supreme Court doesn't mean what it says.

Which is it?

yipe. I'm so far thinking, from the various readings here, that it's #2. that is, scrutiny as such is not expected to apply to the 2A.

And saying that strict scrutiny requires an interest balancing approach is a very odd reading to me.
B/c interest balancing is aka "court & prosecutorial discretion" and "on a case by case basis". case by case basis is also known as "the law usually is right".
__________________
Life SAF Member
Life GOA Member
EFF Member
x7
Reply With Quote
  #139  
Old 11-07-2013, 12:23 PM
Tincon's Avatar
Tincon Tincon is offline
Mortuus Ergo Invictus
CGN Contributor - Lifetime
 
Join Date: Nov 2012
Posts: 5,067
iTrader: 2 / 100%
Default

Quote:
Originally Posted by kcbrown View Post
  1. The Supreme Court is contradicting itself in its own opinion.
  2. The Supreme Court admonishes against the use of scrutiny for, at the very least, 2nd Amendment cases.
  3. The Supreme Court doesn't mean what it says.
Between you, me, and the internet, I think you are right about this. But as I can't fit any of that into a legal argument, I'm going with SCOTUS has rejected intermediate scrutiny. All the counter arguments (including FGG's) require that you make one of those 3 impossible arguments (well, not logically impossible, but a lawyer would look very silly making them).

FGG, I apologize for not responding to you in-depth, but I've been busy with actual work.
__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance.
Reply With Quote
  #140  
Old 11-07-2013, 12:48 PM
hardlyworking hardlyworking is offline
Senior Member
 
Join Date: Jan 2013
Posts: 1,077
iTrader: 0 / 0%
Default

Quote:
Originally Posted by OleCuss View Post
Wow!!! Thank you for all that.

But I'm still not at all convinced that FGG is, himself, a statist.

I know there are questions out there, but I happen to think that FGG wants to advance liberty. He sometimes sounds sorta like he doesn't, but that is usually in the context of conveying to us bad news about how the courts are going to view things.

It is entirely possible I'm more pro-RKBA than FGG is, but I'd not count on it.

Net effect is that I believe that FGG is on the side of liberty. I think he finds it amusing to tweak a bunch of us, but if you really pay attention to what he and NIR say - you learn stuff.
I agree, and sadly I haven't seen Navy In Rwanda here in a while. As aggravating as FGG can be at times, think of him as your debate coach, warning you of the ways you are about to get hammered in front of a judge who does not share your views on the presumption of liberty and a highly regulated government with the balance of power resting on The People.
Reply With Quote
  #141  
Old 11-07-2013, 1:10 PM
elSquid's Avatar
elSquid elSquid is offline
Calguns Addict
 
Join Date: Aug 2007
Location: Left coast.
Posts: 9,395
iTrader: 6 / 100%
Default

Quote:
Originally Posted by REH View Post
You forgot to address two items…………

If a handgun is not on the “safe roster”, it is considered unsafe and cannot be sold retail in California. This unsafe gun can be sold to LEO and used in their course of duty. If it is not safe for one group, then is it not safe for all, groups, correct?
<Devil'sAdvocacyContinues>
In order to become a LEO in CA, an individual must pass formalized training standards. These typically involve (x) days of classroom instruction, followed by (y) days of range time and (z)hundred/thousand rounds fired under the supervision of a qualified instructor. Once on the job, officers are expected to re-qualify with their service/backup handgun monthly\quarterly\etc. If an officer fails, they are required to undergo remedial training/other consequences. Depending on department policies and individual assignments, many officers partake in additional firearms training during the course of their careers.

In order to purchase a handgun in the state of CA, a non-LEO person must pass a simple multiple choice exam.

Currently there are no training requirements to be met. Outside a relatively small group of firearms enthusiasts, many handgun owners do not seek additional handgun training. Most handgun owners in this state do not compete in formal handgun competition. In fact, most handgun owners are not enthusiasts and do not regularly practice with their firearm at all; for these folks, a handgun is an appliance no different from a natural gas stove or a water heater.

Bearing that in mind, it is reasonable for the state to set minimum safety standards for handguns. For pistols, these standards include an LCI ( which is intended to help notify untrained users that the firearm has a round chambered ) and a mag disconnect ( which is intended to allow for a simple mechanism for a novice user to 'safe' a pistol: press 'the button', the mag ejects and the gun is 'safe')

Because of a generally greater level of training and competence, LEOs are exempted from the restrictions of the roster. It should be noted that this exemption only applies to active-duty officers; retired officers are excluded.
</Devil'sAdvocacyContinues>

Quote:
Originally Posted by REH View Post
If this roster is addressing safety, then how will micro stamping make the handgun safer?
<Devil'sAdvocacyContinues>
Microstamping isn't about making safer handguns.

</Devil'sAdvocacyContinues>

-- Michael
Reply With Quote
  #142  
Old 11-07-2013, 1:12 PM
REH's Avatar
REH REH is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Feb 2009
Location: Sacramento
Posts: 1,327
iTrader: 29 / 100%
Default

Quote:
Originally Posted by sholling View Post
I believe you're asking about a 14th Amendment equal protection challenge. As Orwell said "All animals are equal, but some animals are more equal than others", and in this country the ruling class and their minions are generally considered more equal than we in the peasant class and thus not subject to the same rules. That Orwellian "All animals are equal, but some animals are more equal than others" description of "equal" seems to satisfy the requirements of the equal protection clause in the eyes of most judges and nearly all legislators (who along with LEOs, benefit from their "more equal" class status).
If the the 14th is not considered applicable by the ruling class, what about the position that micro stamping to enhance the safety of a firearm? The micro stamping at minimum should be tossed out by the court
Reply With Quote
  #143  
Old 11-07-2013, 1:15 PM
FABIO GETS GOOSED!!!'s Avatar
FABIO GETS GOOSED!!! FABIO GETS GOOSED!!! is offline
Veteran Member
 
Join Date: Feb 2006
Location: Beverly Hills, California
Posts: 2,823
iTrader: 0 / 0%
Default

Let me walk you through it.

When the dissent says:

Quote:
I would simply adopt such an interest-balancing inquiry explicitly.
he's referring to the "interest-balancing inquiry" he has just described in the immediately preceding sentence:

Quote:
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.
Right? (That's asking for a simple yes or no by the way.)

Last edited by FABIO GETS GOOSED!!!; 11-07-2013 at 1:19 PM..
Reply With Quote
  #144  
Old 11-07-2013, 1:19 PM
FABIO GETS GOOSED!!!'s Avatar
FABIO GETS GOOSED!!! FABIO GETS GOOSED!!! is offline
Veteran Member
 
Join Date: Feb 2006
Location: Beverly Hills, California
Posts: 2,823
iTrader: 0 / 0%
Default

Quote:
Originally Posted by Tincon View Post
FGG, I apologize for not responding to you in-depth, but I've been busy with actual work.
No problem. I looked back in this thread and I could have ratcheted things down a notch, sorry about that haha. Let me finish this exchange with kcbrown before moving on.
Reply With Quote
  #145  
Old 11-07-2013, 1:19 PM
IVC's Avatar
IVC IVC is offline
I need a LIFE!!
 
Join Date: Jul 2010
Location: Temecula
Posts: 12,690
iTrader: 3 / 100%
Default

Quote:
Originally Posted by elSquid View Post
<Devil'sAdvocacyContinues>
Microstamping isn't about making safer handguns.

</Devil'sAdvocacyContinues>
This is not "devil's advocacy" since it's one of the points our side is making.
__________________
NRA Benefactor Member
Reply With Quote
  #146  
Old 11-07-2013, 1:42 PM
IVC's Avatar
IVC IVC is offline
I need a LIFE!!
 
Join Date: Jul 2010
Location: Temecula
Posts: 12,690
iTrader: 3 / 100%
Default

Quote:
Originally Posted by elSquid View Post
Bearing that in mind, it is reasonable for the state to set minimum safety standards for handguns. For pistols, these standards include an LCI ( which is intended to help notify untrained users that the firearm has a round chambered ) and a mag disconnect ( which is intended to allow for a simple mechanism for a novice user to 'safe' a pistol: press 'the button', the mag ejects and the gun is 'safe').
The state easily passes "Rational Basis," no question about that.

It's when it comes to the elevated levels of scrutiny that the state must start proving its assertions and must start considering alternative less restrictive ways of achieving the same goal. At that time the state doesn't control the narrative anymore and their claim of marginal and non-detectable safety improvement is measured against the massive ban on modern semi automatic handguns.

We don't need to prove that the "state is wrong," just that their approach is too restrictive since there are other ways to achieve the same (marginal/non-detectable) improvement in safety.
__________________
NRA Benefactor Member
Reply With Quote
  #147  
Old 11-07-2013, 1:47 PM
fizux's Avatar
fizux fizux is offline
Senior Member
CGN Contributor - Lifetime
 
Join Date: Apr 2012
Location: San Francisco
Posts: 1,541
iTrader: 0 / 0%
Default

Quote:
Originally Posted by elSquid View Post
<Devil'sAdvocacyContinues>
In order to become a LEO in CA, an individual must pass formalized training standards. These typically involve (x) days of classroom instruction, followed by (y) days of range time and (z)hundred/thousand rounds fired under the supervision of a qualified instructor. Once on the job, officers are expected to re-qualify with their service/backup handgun monthly\quarterly\etc. If an officer fails, they are required to undergo remedial training/other consequences. Depending on department policies and individual assignments, many officers partake in additional firearms training during the course of their careers.

In order to purchase a handgun in the state of CA, a non-LEO person must pass a simple multiple choice exam.

Currently there are no training requirements to be met. ....

Because of a generally greater level of training and competence, LEOs are exempted from the restrictions of the roster. It should be noted that this exemption only applies to active-duty officers; retired officers are excluded.
</Devil'sAdvocacyContinues>
How is a retired LEO (that received the same training and is required to requalify annually according to the same standards as active police officers) less safe than an active officer? Does that interest in public safety outweigh the burden on the 2A right?

How about current active/reserve military members that shoot waaay more than most, if not all, members of SFPD? How about USPSA competitors looking for a new Open Division gun -- are they somehow safer with a LCI?

Me thinks this is akin to creating a list of "certified not-unsafe" pr0n. Submit 3 copies of each video, magazine, etc., to CA DOJ, and pay $200/yr. Oh yeah, and you can only buy/sell pr0n through a CA DOJ approved dealer that updates a statewide registry of pr0n possessors with the specific material acquired by the buyer; delivery only after a background check, DROS fee, and 10-day wait -- we wouldn't want those registered sex offenders to have access to naughty stuff. Its for the children!
... wayddaminit ... didn't SF try prior restraint with pr0n already? Isn't the burden on the gov't to file an action to enjoin with clear and convincing evidence? Cooper v. Mitchell Bros., 454 U.S. 90 (1981) [Applying U.S. Const. standard], followed by Cooper v. Mitchell Bros., 128 Cal.App.3d 937 (1982) [State standards no stricter than U.S. Const.].
Reply With Quote
  #148  
Old 11-07-2013, 2:23 PM
fizux's Avatar
fizux fizux is offline
Senior Member
CGN Contributor - Lifetime
 
Join Date: Apr 2012
Location: San Francisco
Posts: 1,541
iTrader: 0 / 0%
Default

Quote:
Originally Posted by IVC View Post
The state easily passes "Rational Basis," no question about that.
I disagree. What public purpose is served by distinguishing handgun colors -- black from FDE or OD green? Is it safer to preclude an otherwise "safe" pistol from being sold new with ambidextrous safeties or mag releases?
Reply With Quote
  #149  
Old 11-07-2013, 2:47 PM
IVC's Avatar
IVC IVC is offline
I need a LIFE!!
 
Join Date: Jul 2010
Location: Temecula
Posts: 12,690
iTrader: 3 / 100%
Default

Rational Basis is an extremely low standard where legislators are presumed to be acting in a rational manner. A challenger would have all the burden of proof to the contrary.
__________________
NRA Benefactor Member
Reply With Quote
  #150  
Old 11-07-2013, 3:48 PM
curtisfong's Avatar
curtisfong curtisfong is online now
Calguns Addict
 
Join Date: Jan 2009
Posts: 5,492
iTrader: 9 / 100%
Default

Quote:
Originally Posted by fizux View Post
I disagree. What public purpose is served by distinguishing handgun colors -- black from FDE or OD green? Is it safer to preclude an otherwise "safe" pistol from being sold new with ambidextrous safeties or mag releases?
Your disagreeing with the wrong premise. You are arguing that "rational basis" should mean something other than "the legislature says its rational".

Unfortunately that is not the case. "Rational basis" means the courts defer to legislatures as to what "rational" is (in CA, when it comes to the 2A).
__________________
The Rifle on the Wall

"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamela Harris

Lawyers and their Stockholm Syndrome
Reply With Quote
  #151  
Old 11-07-2013, 4:48 PM
Tincon's Avatar
Tincon Tincon is offline
Mortuus Ergo Invictus
CGN Contributor - Lifetime
 
Join Date: Nov 2012
Posts: 5,067
iTrader: 2 / 100%
Default

Quote:
Originally Posted by curtisfong View Post
Your disagreeing with the wrong premise. You are arguing that "rational basis" should mean something other than "the legislature says its rational".

Unfortunately that is not the case. "Rational basis" means the courts defer to legislatures as to what "rational" is (in CA, when it comes to the 2A).
No, it does not.
__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance.
Reply With Quote
  #152  
Old 11-07-2013, 4:52 PM
fizux's Avatar
fizux fizux is offline
Senior Member
CGN Contributor - Lifetime
 
Join Date: Apr 2012
Location: San Francisco
Posts: 1,541
iTrader: 0 / 0%
Default

Quote:
Originally Posted by Tincon View Post
No, it does not.
When it comes to 2A in CA, I think curtisfong is correct. For any other regulation (whether implicating a right or otherwise), rational basis has to be at least vaguely rational.
__________________
Nationwide Master List of Current 2A Cases, courtesy of Al Norris @ TFL.

Reloading Clubs: SF, East Bay

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).
Reply With Quote
  #153  
Old 11-07-2013, 4:58 PM
RipVanWinkle RipVanWinkle is offline
Member
 
Join Date: Feb 2010
Location: S.F. Bay Area
Posts: 266
iTrader: 1 / 100%
Default

Quote:
Originally Posted by kcbrown View Post
  1. The Supreme Court is contradicting itself in its own opinion.
  2. The Supreme Court admonishes against the use of scrutiny for, at the very least, 2nd Amendment cases.
  3. The Supreme Court doesn't mean what it says.

Which is it?
Possibly 2.?

I was investigating intermediate scrutiny in 1A cases, per FGG's earlier questions, and I came across a couple of academic articles on that topic focusing on problems with levels of scrutiny. These articles are about 1A issues, but the development of levels of scrutiny is a lot more extensive than in 2A cases. Both articles are critical of the levels of scrutiny approach to legal analysis.

The first article gives a brief history of the subject and contains a small empirical study suggesting that despite a paucity of Supreme Court guidance appellate courts have forged ahead, with less than optimal results. Worth reading if you've a high tolerance for ambiguity and counter factual conditionals! I'm including a link and a quote of the abstract:

http://illinoislawreview.org/wp-cont.../3/Bhagwat.pdf


Quote:
THE TEST THAT ATE EVERYTHING:
INTERMEDIATE SCRUTINY IN FIRST
AMENDMENT JURISPRUDENCE
Ashutosh Bhagwat

There is little doubt that over the past thirty years, the most important doctrinal development in the jurisprudence of constitutional rights has been the formulation, and proliferation, of “tiers of scrutiny,” which courts employ to reconcile individual liberties with societal needs. The First Amendment “intermediate scrutiny” tier was born as a product of the merger of several distinct and narrow branches of the Supreme Court’s jurisprudence and, over the years, has attained central importance in the overall structure of free speech law. Indeed, so important and ubiquitous has intermediate scrutiny
become that Justice Scalia has described it as a “default standard,” and it has been the standard of review in countless significant Supreme Court and courts of appeals cases over the past quarter century. Despite this importance, however, scholarly analysis of First Amendment intermediate scrutiny has been curiously muted. This article seeks to fill this major gap in modern First Amendment scholarship by offering a comprehensive assessment of the intermediate scrutiny test. After providing a historical description of the development of intermediate scrutiny since the mid-1980s, this article argues that despite uncertainties that still exist in the Supreme Court, it is clear that a distinct body of intermediate scrutiny free speech jurisprudence has emerged at the appellate level. Then, this article turns to an examination of how the intermediate scrutiny test has in fact been
applied in the courts of appeals since its emergence. Because an examination of the case law reveals that the intermediate scrutiny test does not function very well in practice, this article concludes that the proper doctrinal solution is disaggregation. Disaggregation, the dismantling of the intermediate scrutiny test into its constituent parts, will create a more detailed jurisprudence regarding how appellate courts should balance speech rights and societal interests in different areas of free speech law.
The second article, by Eugene Volokh, is here:

http://www2.law.ucla.edu/volokh/scrutiny.htm

I don't know whether these academic articles have any influence on judges, but it's possible that there's some dissatisfaction with the levels of scrutiny approach among the judiciary, and that's appearing in the Heller decision. Scalia may be just being more inscrutable than FGG.
Reply With Quote
  #154  
Old 11-07-2013, 5:43 PM
elSquid's Avatar
elSquid elSquid is offline
Calguns Addict
 
Join Date: Aug 2007
Location: Left coast.
Posts: 9,395
iTrader: 6 / 100%
Default

Quote:
Originally Posted by IVC View Post
This is not "devil's advocacy" since it's one of the points our side is making.
Currently, federal law mandates that manufacturers inscribe a unique identifier on each firearm produced. Is this requirement unconstitutional?

Microstamping requires that a pistol mark spent casings with an identifier. Is this requirement generally unconstitutional? Or is it unconstitutional because of the current problems with implementation? If the implementation details are 'worked out', will microstamping then pass muster?


Quote:
Originally Posted by IVC View Post
It's when it comes to the elevated levels of scrutiny that the state must start proving its assertions and must start considering alternative less restrictive ways of achieving the same goal. At that time the state doesn't control the narrative anymore and their claim of marginal and non-detectable safety improvement is measured against the massive ban on modern semi automatic handguns.
My concern is that the "massive ban" isn't really one. According to a quick check of the roster there are 1244 models on the list, and from my recent expeditions to gunstores it appears that there are many different types of firearms available for sale. As mentioned before, the largest handgun manufacturers in the country - Ruger and S&W - have adapted their designs to meet roster requirements. SIG actually makes handguns specifically targeted for CA.

I wonder how the "massive ban" argument would fare when presented to the courts? A very simple question to ask of any individual - and I'll ask you - is of the handguns currently on the list, how many would you feel would be suitable for personal defense? 10? 20? 100? More? How difficult would it be for you to walk into a gunstore tomorrow and purchase a suitable defensive handgun from the choices available on the roster?

I also wonder if the "massive ban" claim really devolves into "I have a Constitutional right to own whatever handgun I want for personal defense."
How will the courts view that?

An example: Norinco makes pretty neat, good quality 1911 clones. Unfortunately not only are those handguns not on the roster, they can't be legally imported into the country. Does my right to buy a new Norinco not only invalidate state law, but federal trade laws as well? Would the courts ever say "yes"?

-- Michael
Reply With Quote
  #155  
Old 11-07-2013, 6:02 PM
elSquid's Avatar
elSquid elSquid is offline
Calguns Addict
 
Join Date: Aug 2007
Location: Left coast.
Posts: 9,395
iTrader: 6 / 100%
Default

Quote:
Originally Posted by fizux View Post
How is a retired LEO (that received the same training and is required to requalify annually according to the same standards as active police officers) less safe than an active officer? Does that interest in public safety outweigh the burden on the 2A right?

How about current active/reserve military members that shoot waaay more than most, if not all, members of SFPD? How about USPSA competitors looking for a new Open Division gun -- are they somehow safer with a LCI?
Sounds like an argument that is less about the roster, and more about providing a means for Joe-nonActiveLEObutSkilledWithaGun-Average to also get an exemption.

Kind of like the 1in30 dealer sale rule for handguns...


Quote:
Originally Posted by fizux View Post
Me thinks this is akin to creating a list of "certified not-unsafe" pr0n. Submit 3 copies of each video, magazine, etc., to CA DOJ, and pay $200/yr. Oh yeah, and you can only buy/sell pr0n through a CA DOJ approved dealer that updates a statewide registry of pr0n possessors with the specific material acquired by the buyer; delivery only after a background check, DROS fee, and 10-day wait -- we wouldn't want those registered sex offenders to have access to naughty stuff. Its for the children!
... wayddaminit ... didn't SF try prior restraint with pr0n already? Isn't the burden on the gov't to file an action to enjoin with clear and convincing evidence? Cooper v. Mitchell Bros., 454 U.S. 90 (1981) [Applying U.S. Const. standard], followed by Cooper v. Mitchell Bros., 128 Cal.App.3d 937 (1982) [State standards no stricter than U.S. Const.].
Serious question: when can I expect all the listed restrictions on firearms to be invalidated based on Cooper v Mitchell Bros?

-- Michael
Reply With Quote
  #156  
Old 11-07-2013, 6:07 PM
IVC's Avatar
IVC IVC is offline
I need a LIFE!!
 
Join Date: Jul 2010
Location: Temecula
Posts: 12,690
iTrader: 3 / 100%
Default

Quote:
Originally Posted by elSquid View Post
Currently, federal law mandates that manufacturers inscribe a unique identifier on each firearm produced. Is this requirement unconstitutional?
No, it doesn't affect the firearm and doesn't add any measurable cost.

Quote:
Originally Posted by elSquid View Post
Microstamping requires that a pistol mark spent casings with an identifier. Is this requirement generally unconstitutional? Or is it unconstitutional because of the current problems with implementation? If the implementation details are 'worked out', will microstamping then pass muster?
It's unconstitutional because of the "current problems with the implementation," or to be more precise, because such handguns don't exist at all. If it's worked out and it consists of some simple modification of the firing pin and chamber it would most likely be constitutional (and irrelevant). As long as it is not used to limit access to spare parts or to start registration of barrels and firing pins.

Quote:
Originally Posted by elSquid View Post
My concern is that the "massive ban" isn't really one. According to a quick check of the roster there are 1244 models on the list, and from my recent expeditions to gunstores it appears that there are many different types of firearms available for sale.
This is the same argument as "magazine capacity." How many are "sufficient" before it becomes an infringement?

Quote:
Originally Posted by elSquid View Post
I wonder how the "massive ban" argument would fare when presented to the courts? A very simple question to ask of any individual - and I'll ask you - is of the handguns currently on the list, how many would you feel would be suitable for personal defense? 10? 20? 100? More? How difficult would it be for you to walk into a gunstore tomorrow and purchase a suitable defensive handgun from the choices available on the roster?
This is the crux of the disagreement. It's not "how many are sufficient" (the most restrictive way to implement a policy), but "why are some handguns that are bona fide suitable for self defense banned" (the least restrictive way to implement a policy.)

The state must justify the ban and the justification for the ban cannot be reversed by requiring us to justify a need. That's the main change post-Heller when 2A was recognized as pertaining to an individual civil right and the simple "rational basis" is no longer sufficient. The burden is now on the state.
__________________
NRA Benefactor Member
Reply With Quote
  #157  
Old 11-07-2013, 6:50 PM
curtisfong's Avatar
curtisfong curtisfong is online now
Calguns Addict
 
Join Date: Jan 2009
Posts: 5,492
iTrader: 9 / 100%
Default

Quote:
Originally Posted by Tincon View Post
No, it does not.
I think Breyer's dissent in Heller perfectly captures the position of CA courts. And until SCOTUS says otherwise with more clarity, this will stand.
__________________
The Rifle on the Wall

"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamela Harris

Lawyers and their Stockholm Syndrome
Reply With Quote
  #158  
Old 11-07-2013, 7:07 PM
kcbrown's Avatar
kcbrown kcbrown is offline
Calguns Addict
 
Join Date: Apr 2009
Posts: 8,203
iTrader: 1 / 100%
Default

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
Let me walk you through it.

When the dissent says:



he's referring to the "interest-balancing inquiry" he has just described in the immediately preceding sentence:



Right? (That's asking for a simple yes or no by the way.)
Yes, of course. But the problem here is that he has characterized that "interest-balancing inquiry" as being precisely what the application of strict scrutiny to gun regulations simplifies to. You can't simply dismiss the "interest-balancing inquiry" itself. You have to address the claim that strict scrutiny when applied to gun laws becomes the very interest-balancing inquiry that the majority objects to.

If the dissent is correct in that characterization, then by objecting to that "interest-balancing inquiry", the Supreme Court is objecting to the application of strict scrutiny to gun laws.

So everything revolves around whether or not the dissent's characterization of the application of strict scrutiny to gun laws is correct. And that obviously leads to the question of, if the characterization is incorrect, how that characterization is incorrect in such a way that the Supreme Court would object to it but not to strict scrutiny itself.

The problem for the interpretation you seem to subscribe to here (or that, at the very least, you appear to be putting forth) is that there is no indication whatsoever that the dissent's description of strict scrutiny as applied to gun laws is incorrect in any way, much less in a way that makes a difference here. Nothing stated by the majority indicates any shortcomings whatsoever of the characterization in question.

Indeed, the Court's very statements about what they object to do in fact apply to the traditional methods of scrutiny, namely that they are used to "decide, on a case by case basis, whether the right is really worth insisting upon", for they are used to determine neither the scope of the right nor whether the law in question infringes upon the right (for if that were the question being answered, then the issue of "government interest" would not enter into the equation at all), and that leaves only whether or not the right prevails. But insisting upon the right means the right must prevail when it is infringed upon by a law. Since traditional methods of scrutiny are used to decide whether or not to uphold the law anyway, it is in fact a means to decide, on a case by case basis, whether the right is really worth insisting upon. And that is something the Supreme Court explicitly objects to in Heller.


At the end of the day, it is all about this simple fact: any judicial method of analysis which allows some laws to infringe upon the right while disallowing others is, in fact, a method that is used to determine on a case by case basis whether the right is really worth insisting upon. One simply cannot claim that the right is being insisted upon while simultaneously allowing infringement of it! The latter contradicts the former, and that's that.

The Supreme Court could even state up front that traditional scrutiny methods do not conflict with the basis of their objection to dissent's "interest balancing" test, but that alone doesn't make it so. The Supreme Court could state that the moon is made of cheese, but that would not make it any less false. Argument by assertion is just as invalid when used by the Supreme Court as it is when used by anyone else.
__________________
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

Last edited by kcbrown; 11-07-2013 at 8:13 PM..
Reply With Quote
  #159  
Old 11-07-2013, 7:08 PM
fizux's Avatar
fizux fizux is offline
Senior Member
CGN Contributor - Lifetime
 
Join Date: Apr 2012
Location: San Francisco
Posts: 1,541
iTrader: 0 / 0%
Default

Quote:
Originally Posted by elSquid View Post
Sounds like an argument that is less about the roster, and more about providing a means for Joe-nonActiveLEObutSkilledWithaGun-Average to also get an exemption.

Kind of like the 1in30 dealer sale rule for handguns...
You don't need an exception to buy a book that isn't on the "not unsafe book" roster. I think the proper analysis is that firearms should be presumptively lawful, and the State should have the burden of showing with clear and convincing evidence that a particular model is "dangerous" {defined in parallel with obscenity; devoid of artistic, historical, or self defense value, etc.}. So a claymore mine is probably going to be an easy win, but it's going to be up to the State to prove that Glock gen4s are "dangerous," not our job to pay Glock to prove to DOJ that the gun meets arbitrary lines drawn in the sand by folks that have never touched a firearm.


Quote:
Originally Posted by elSquid View Post
Serious question: when can I expect all the listed restrictions on firearms to be invalidated based on Cooper v Mitchell Bros?
We only wish. Bow-chicka-bow-bow.
__________________
Nationwide Master List of Current 2A Cases, courtesy of Al Norris @ TFL.

Reloading Clubs: SF, East Bay

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).
Reply With Quote
  #160  
Old 11-07-2013, 7:38 PM
kcbrown's Avatar
kcbrown kcbrown is offline
Calguns Addict
 
Join Date: Apr 2009
Posts: 8,203
iTrader: 1 / 100%
Default

Quote:
Originally Posted by Tincon View Post
Between you, me, and the internet, I think you are right about this. But as I can't fit any of that into a legal argument, I'm going with SCOTUS has rejected intermediate scrutiny. All the counter arguments (including FGG's) require that you make one of those 3 impossible arguments (well, not logically impossible, but a lawyer would look very silly making them).
I figured by "impossible arguments", you were referring to arguments that were logically inconsistent. I agree, all of the counterarguments do require insisting upon illogic in that way. Or, at least, nobody has managed to put forth a counterargument that withstands the rigors of a logical analysis.

I won't dismiss out of hand the possibility of such a counterargument, but I see absolutely no flaw in the logic of the argument I've put forth on this, and it is, to my knowledge, comprehensive.
__________________
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

Last edited by kcbrown; 11-07-2013 at 7:41 PM..
Reply With Quote
Reply

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump



All times are GMT -8. The time now is 10:23 PM.




Powered by vBulletin® Version 3.8.9
Copyright ©2000 - 2017, vBulletin Solutions, Inc.
Proudly hosted by GeoVario the Premier 2A host.
Calguns.net, the 'Calguns' name and all associated variants and logos are ® Trademark and © Copyright 2002-2016, Calguns.net an Incorporated Company All Rights Reserved.