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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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Old 04-21-2017, 10:24 PM
freethinkr freethinkr is offline
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Default Why AB 1964 (2014) and AB 857 (2016) are invalid - and easy to challenge

There's something fundamentally wrong with the reasoning associated with this law (AB 1964), of course, but also, it would be wrong to assume that people would need to comply with it in the sense that people have been assuming that they do.

Allow me to explain.

In summary, the laws described below (both AB 1964 (2014) and AB 857 (2016)) can easily be found to be "void for vagueness," and for other reasons.

First, the whole text of AB 1964 (2014).

SECTION 1. Section 32100 of the Penal Code is amended to read:
32100. (a) Article 4 (commencing with Section 31900) and Article 5 (commencing with Section 32000) shall not apply to a single-action revolver that has at least a five-cartridge capacity with a barrel length of not less than three inches, and meets any of the following specifications:
(1) Was originally manufactured prior to 1900 and is a curio or relic, as defined in Section 478.11 of Title 27 of the Code of Federal Regulations.
(2) Has an overall length measured parallel to the barrel of at least seven and one-half inches when the handle, frame or receiver, and barrel are assembled.
(3) Has an overall length measured parallel to the barrel of at least seven and one-half inches when the handle, frame or receiver, and barrel are assembled and that is currently approved for importation into the United States pursuant to the provisions of paragraph (3) of subsection (d) of Section 925 of Title 18 of the United States Code.
(b) Article 4 (commencing with Section 31900) and Article 5 (commencing with Section 32000) shall not apply to a single-shot pistol with a break top or bolt action and a barrel length of not less than six inches and that has an overall length of at least 10˝ inches when the handle, frame or receiver, and barrel are assembled. However, Article 4 (commencing with Section 31900) and Article 5 (commencing with Section 32000) shall apply to a semiautomatic pistol that has been temporarily or permanently altered so that it will not fire in a semiautomatic mode.


According to a light reading of this, it would seem as though the only way to avoid these requirements would be to have a "single-shot pistol with a break top or bolt action and a barrel length of not less than six inches and that has an overall length of at least 10˝ inches when the handle, frame or receiver, and barrel are assembled." Some people such as Inlander Arms have suggested that their products, which alter an item so that it cannot fire in semiautomatic mode, will circumvent these requirements but they are wrong, because merely constructing a pistol from an 80 percent frame to make it to a single shot pistol still subjects the resulting pistol to "Article 4 (commencing with Section 31900) and Article 5 (commencing with Section 32000)" which "shall apply to a semiautomatic pistol that has been temporarily or permanently altered so that it will not fire in a semiautomatic mode."

However, this does not mean that the law in AB 1964 (2014) would actually apply, nor would AB 857 (2016).

It is not necessary to use Inlander Arms products, in fact, people can continue (and should) to make arms out of raw forging or 80 percenters if they so desire, including in circumstances where people wish to complete their own pistol frames, to make their own semiautomatic pistols. (I believe the federal government limits you to one 80 percent build per year based on the arbitrary rules they've set but that is something to discuss for another post another time.)

Let's examine why you shouldn't concern yourself about AB 1964 (2014) or AB 857 (2016) if you are a home builder without a license.

1) AB 857 (2016) and the term "assembled" as used in AB 1964 (2014)

Existing law makes it a crime for any person in this state to manufacture, import into the state, keep for sale, offer or expose for sale, give, or lend an unsafe handgun. But who (as an unlicensed homebuilder) has "manufactured" an "unsafe handgun?" The answer is exactly nobody.

AB 1964 relies upon a key term, "assembled," for the law to be functional. The word "assembling" is also found in AB 857 (2016), the law which attempts to restrict home builds of firearms (what many people refer to as eighty percenters).

AB 857 attempts to apply its provisions to (as quoted from the law) "“firearm(s),” includ(ing) the frame or receiver of the weapon." Under the GCA (The Gun Control Act of 1968, Public Law 90-618), a "firearm frame or receiver" is defined as "That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel." AB 857 demands that "Commencing July 1, 2018, prior to manufacturing or assembling a firearm, a person manufacturing or assembling the firearm shall (...) Apply to the Department of Justice for a unique serial number or other mark of identification (...)" and "Within 10 days of manufacturing or assembling a firearm in accordance with paragraph (1), the unique serial number or other mark of identification provided by the department shall be engraved or permanently affixed to the firearm in a manner that meets or exceeds the requirements imposed on licensed importers and licensed manufacturers of firearms."

These "requirements" from AB 857 have no legal effect because (1) they are unconstitutional, (2) they will be challenged in court, (3) even if they were not able to be successfully challenged, they would not take effect until July 2018. It is also arguable that the subtractive machining process used in making your frame or receiver with a drill press in your own home, for example, does not legally qualify as "assembling," which means under AB 857, to "fabricate or construct." Using your own tools in your own home, you are not "manufacturing," and you are also not "assembling." You are merely engaged in the process of "making" a receiver using subtractive machining (use of a router, drill press, or drill).

When you do your builds in your own home, for your own purpose, with your own tools, you are "making," but not "manufacturing." The term “make” is defined in the NFA to include manufacturing, putting together, altering, any combination of these, or otherwise producing a firearm (the definition can be found at (26 U.S.C. 5845(i))). Within this context, when you are finishing an eighty percenter in your home (as an unlicensed person), you are "putting together" or "otherwise producing" a firearm, but you're not "manufacturing" one (this distinction is important). So those of us who have made weapons in our own home (who do not have any special licenses) well understand that we cannot transfer it to someone else. For example, receivers I've made for myself in my own home starting from an 80 percenter, are for my use only and will NEVER be transferred and sold to anyone else. Why? I'm not a Type 07 FFL and I don't have a license to manufacture. I don't have any desire to get in trouble with State Dept.

(But I can still give California the middle finger and keep right on making stuff, and so can you.)

This also means of course that we need not concern ourselves with AB 1964 (2014) so long as we are "making" and not "assembling" a pistol from an 80 percent frame. If the pistol was never "assembled," then the provisions of AB 1964 do not apply to it. If someone were to assert that the provisions of AB 857 (2016) or AB 1964 (2014) did apply to the making of a pistol from an 80 percent frame, and if they (acting in reliance upon AB 857 and / or AB 1964) tried to punish you or confiscate the items you'd built, those laws could be challenged and could be overturned as being void for vagueness, and on other grounds as well. This brings me to the next point:


2) bobbodaggit's mention of the Second Amendment

"The Second Amendment has been incorporated to state action as we know, which means citizens can sue the state of CA for violating 2d am rights under color of state law under 42 usc sec 1983"

bobbodaggit is quite correct.

In McDonald v. Chicago, in 2010, the Supreme Court reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states.

3) Supremacy Clause and federal preemption

Congress has the ability to overrule state law on this issue. It has already proposed to do so through federal preemption provisions in the Concealed Carry Reciprocity bill (H.R. 38) and in both House and Senate versions of the Hearing Protection Act. There is no reason it cannot also overrule or make null and void state law that is unconstitutional when it comes to California's laws that it continues to pass that violate our rights.

the Supreme Court in United States v. Cruikshank, 92 U.S. 542 (1875):

“The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, and from denying to any person within its jurisdiction the equal protection of the laws, but it adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the Amendment guarantees, but no more. The power of the National Government is limited to the enforcement of this guaranty.”

By 1966, United States v. Guest had altered the legal validity of the original interpretation and decision in the Cruikshank decision of 1875. United States v. Guest 383 U.S. 745 (1966) is a United States Supreme Court opinion, authored by Justice Potter Stewart, in which the court extended the protection of the 14th Amendment to citizens who suffer rights deprivations at the hands of private conspiracies, where there is minimal state participation in the conspiracy. Thus the 14th Amendment may be understood in this context whether there are state actors or private actors who have caused someone's rights to be deprived. By 2008, some elements of the Cruikshank decision were questioned (although not formally overruled) by the famous District of Columbia v. Heller decision, quoted in part here:
"With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government."
Again, this issue did come before the U.S. Supreme Court in McDonald v. Chicago, in 2010, in which the Supreme Court reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states.

Ample precedent for federal preemption has been shown as recently as February 2016, when none other than the Ninth Circuit actually acknowledged and supported the 'Preemption Defense' as explained here in the National Law Review. The Ninth Circuit's decision ACTUALLY INVALIDATED CALIFORNIA STATE LAW. http://www.natlawreview.com/article/...t-not-dead-yet

2) And in November 2016, the Ninth Circuit determined that preemption arguments should be weighed strongly not just in one, but in a few different cases. http://www.natlawreview.com/article/...-ninth-circuit

I encourage people to support this effort at https://www.facebook.com/repealunconstitutionallaws to begin the process of calling on Congress to make various unconstitutional laws null and void.

One example is here:

https://www.facebook.com/repealuncon...19492561406989

Please support with your signature. (One of the petition targets is Rep. Massie of the 2nd Amendment caucus.)
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Last edited by freethinkr; 04-21-2017 at 11:00 PM..
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Old 04-22-2017, 5:17 PM
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Go ahead and get right on it and let us know how it goes.
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Old 04-22-2017, 5:35 PM
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Thanks for all your hard work on both the research and your well-written post. Hope this leads to something good, someday.
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Old 04-23-2017, 5:35 AM
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Quote:
Originally Posted by God Bless America View Post
Go ahead and get right on it and let us know how it goes.
LMAO
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Old 04-23-2017, 6:20 AM
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Quote:
the laws described below (both AB 1964 (2014) and AB 857 (2016)) can easily be found to be "void for vagueness," and for other reasons.
OP, you're new here, so I hope you won't get ribbed too badly, but when you use the word "easy" like that you ignore a huge body of court losses and remind us of the so-called "right people" that a few years ago were claiming we would have all kinds of wins by now. It just isn't as simple as we want it to be.

In general I think it's fruitless to concoct a legal path by which you could argue for a win unless you also consider the arguments against our position. In general it seems judges will take any argument against us if at all possible.
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Old 04-23-2017, 3:18 PM
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You forgot which state we live in. The same thing was discussed with the magazine parts kit thing. Putting pieces together is considered "manufacturing". Even if it isn't by any logical sense, this is kalifornistan.

You cannot manufacture an 80% pistol frame and "assemble" a pistol. You are manufacturing. You can make perhaps an 80% frame then attach a bolt or break upper. But then you need to register it, etc etc etc. Then you run into trouble if you put a normal slide on it because you have, in kalifornistan's opinion, manufactured a semi auto. Why? Because this is kalifornistan.

The answer to all your work and research is "this is kalifornia". So, go ahead and knock yourself out. There are several solutions to this however.

I-80 east
I-40 east
I-10 east
I-15 east
I-8 east
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Old 04-23-2017, 5:19 PM
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Silly me, I can think of a whole sh*tload of solutions that don't involve driving on the Interstate. You sheep need to stop kissing your master's feet and start acting more like Free Men.

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Quote:
Originally Posted by rm1911 View Post
You forgot which state we live in. The same thing was discussed with the magazine parts kit thing. Putting pieces together is considered "manufacturing". Even if it isn't by any logical sense, this is kalifornistan.

You cannot manufacture an 80% pistol frame and "assemble" a pistol. You are manufacturing. You can make perhaps an 80% frame then attach a bolt or break upper. But then you need to register it, etc etc etc. Then you run into trouble if you put a normal slide on it because you have, in kalifornistan's opinion, manufactured a semi auto. Why? Because this is kalifornistan.

The answer to all your work and research is "this is kalifornia". So, go ahead and knock yourself out. There are several solutions to this however.

I-80 east
I-40 east
I-10 east
I-15 east
I-8 east
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Old 04-23-2017, 8:44 PM
freethinkr freethinkr is offline
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Default "easy"

Quote:
Originally Posted by zhyla View Post
OP, you're new here, so I hope you won't get ribbed too badly, but when you use the word "easy" like that you ignore a huge body of court losses and remind us of the so-called "right people" that a few years ago were claiming we would have all kinds of wins by now. It just isn't as simple as we want it to be.

In general I think it's fruitless to concoct a legal path by which you could argue for a win unless you also consider the arguments against our position. In general it seems judges will take any argument against us if at all possible.
I agree it's not "easy," for a couple reasons.

1) The process. In order to make something that works, it takes more than grinding out an 80 percenter or doing it from raw forged, which some people still do (starting from what basically is a block of metal with no holes, no machine work, no mag well or any other work done on the forging). The selection of parts and the overall process simply takes time and some dedication and skill. The process in other words.

2) I disagree that it's "fruitless" to "concoct" a legal path, since the legal path already exists to argue for a win. I do think it's valid to consider the points for and against the position (in other words, what are the potential legal weaknesses of an argument if it were to be evaluated in court). I am not a lawyer, haven't passed bar or baby bar, the extent of my legal knowledge is that I took some con law and administrative law coursework in graduate, land use law plus lots of sciences during undergrad, my highest degree is an EMPA (kind of like an MPA). So no, I'm not a lawyer, but I think I have a reasonable argument against AB 857.

But no legal case is "easy," because you have to show harm and then you usually have to concede that at least some of your argument will fall by the wayside as you burn time, money, etc. and even if your argument is likely to win, you have to survive the expense of going through appeals.

So, obviously do-able, just not exactly "easy."
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Old 04-23-2017, 9:06 PM
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Default tactics

Quote:
Originally Posted by rm1911 View Post

(...)

You cannot manufacture an 80% pistol frame and "assemble" a pistol. You are manufacturing. You can make perhaps an 80% frame then attach a bolt or break upper. But then you need to register it, etc etc etc. Then you run into trouble if you put a normal slide on it because you have, in kalifornistan's opinion, manufactured a semi auto.

(...)
You said, "You are manufacturing." Actually, no, someone would be manufacturing if they had a 07 FFL and were in fact manufacturing. If they are an unlicensed person doing the described activity, which is subtractive machining, in their own home with their own tools, for their own personal use, and not for sale or transfer, it is "making," not manufacturing.

(Editing, to add detail: ATF's statement on manufacturing:

Federal law requires a Federal firearms license if you are engaged in the business as a firearms
dealer, manufacturer or importer. A person is engaged in those businesses, as it applies to each
license type, as follows:
1.Manufacturer of firearms --a person who devotes time, attention, and labor to
manufacturing firearms as a regular course of trade or business with the principal
objective of livelihood and profit through the sale or distribution of the firearms
manufactured
(18 U.S.C. § 921(a)(21)(A));
2. Manufacturer of ammunition -- a person who devotes time, attention, and labor to
manufacturing ammunition as a regular course of trade or business with the principal
objective of livelihood and profit through the sale or distribution of the ammunition
manufactured
(18 U.S.C. § 921(a)(21)(B))


(Per ATF and a plain reading of U.S. Code, the above items trigger a FFL requirement for manufacturers. Further details regarding ammunition -- Note that under US law, reloading for only personal use does not require any licensing as a manufacturer, or other licensing. Also according to the ATF, if you are "engaged in the business of performing machining, molding, casting, forging, printing (additive manufacturing) or other manufacturing process to create a firearm frame or receiver, or to make a frame or receiver suitable for use as part of a “weapon ... which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” i.e., a “firearm,” you must be licensed as a
manufacturer under the GCA; identify (mark) any such firearm; and maintain required manufacturer’s records" (...) "As defined by section 921(a)(21)(A), the term “engaged in the business” means, as applied to a manufacturer of firearms, “a person who devotes time, attention, and labor to manufacturing firearms as a regular course of trade or
business with the principal objective of livelihood and profit through the sale or distribution of the firearms manufactured. (as per ATF Rul. 2015-1 of Jan. 2, 2015, clarifying ATF Ruling 2010-10 and definitions of manufacturer). The ATF also stipulated in August 30, 2010, that "an unlicensed individual may make a firearm as defined in the GCA for his own personal use, but not for sale or distribution." See details via their letter, here.)

You suggested that "you can make perhaps an 80% frame then attach a bolt or break upper," which is what Inlander Arms products suggest you do. Let us suppose for a moment that they were right (I do not agree with them). But suppose for a moment they are correct. Note in the Inlander Arms FAQ that they only cite the following Penal Code section:

"(b) Article 4 (commencing with Section 31900) and Article 5 (commencing with Section 32000) shall not apply to a single-shot pistol with a break top or bolt action and a barrel length of not less than six inches and that has an overall length of at least 10˝ inches when the handle, frame or receiver, and barrel are assembled."

As I pointed out earlier in my original post in this thread, this is inadequate for their model in which they assume their product will be able to circumvent said law, because it would not under the "strict reading." Under the "strict reading" (as a California regulator might read it) you would also have to consider that merely constructing a pistol from an 80 percent frame to make it to a single shot pistol still subjects the resulting pistol to "Article 4 (commencing with Section 31900) and Article 5 (commencing with Section 32000)" which "shall apply to a semiautomatic pistol that has been temporarily or permanently altered so that it will not fire in a semiautomatic mode!" Let us not engage in selective reading of the law merely to justify a purchase of Inlander Arms products.

But -- and this is where either you think I've gone off the rails or you go, "ahhh, he's right" -- nobody should have to worry about this anyway. IMHO you don't have to concern yourself about that law nor do you have to waste money on Inlander Arms products. Why?

Because AB 1964 (2014) and AB 857 (2016) rely on the term "assembled" / "assembling" which are undefined in the law and thus have to be ascertained by a plain reading of available definitions. This is also part of why an argument can be made that the law is void for vagueness.

You are not "manufacturing" (unless you are licensed to manufacture, e.g. 07 FFL) or "assembling" (it's undefined in the law, after all). You are "making."

Ergo, AB 1964 (2014) / AB 857 (2016) law if applied is invalid and creates harm at the moment of enforcement. Etc.

There could very well be another way to hack at the law and maybe there is a better way. Maybe the better way is on first amendment grounds due to the question of prior restraint already brought up. The state would have to meet a very high bar indeed to justify prior restraint before a federal court or if it managed to there, at the U.S. Supreme Court it would find justification of the prior restraint it imposes via AB 857 to be very difficult if not impossible to defend.

But again, that's where the lawyers come in to figure out the best tactic to overturn the law.
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Last edited by freethinkr; 04-23-2017 at 10:21 PM.. Reason: Clarifying definition of manufacturer.
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Old 04-23-2017, 9:12 PM
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But again, that's where the lawyers come in to figure out the best tactic to overturn the law.
So go hire one, it will be easy, right? Easy means inexpensive when billing by the hour!
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Old 04-23-2017, 9:28 PM
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Quote:
Originally Posted by God Bless America View Post
Go ahead and get right on it and let us know how it goes.
I'm not holding my breath for (NRA, FPC, Calguns, etc...) to start a lawsuit to overturn AB 1964 (2014) and AB 857 (2016), although I do think they will keep on asking for money while telling us that one day, they will challenge said laws.

But it obviously needs to happen this year. AB 857 as an example, is not effective yet but comes into effect July of 2018. So... it would be hard to prove harm until July 2018, presumably the date at which it might first be enforced, but I think there is a need to begin the process of examining how to overturn it already.

If the gun groups won't do it, we'll have to do it as individuals or on an ad-hoc collective basis.

I've also examined this option (why not examine all possible options?):

https://www.facebook.com/repealuncon...19492561406989

(Please read the petition, like, share, etc. Spreading the word is important)

Discussion on this above option (simply getting the state laws deemed null and void) is discussed in depth on gunboards here:

http://forums.gunboards.com/showthre...To-Do-About-It
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Old 04-23-2017, 9:35 PM
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Default The obvious

Quote:
Originally Posted by God Bless America View Post
So go hire one, it will be easy, right? Easy means inexpensive when billing by the hour!
I've already gotten quotes if you are curious.

The first step in challenging these (just preliminary legal research from experienced gun lawyers) is going to cost $2000. Costs beyond that would also be needed in order to continue any legal case. For that reason, a minimum of $2000 is needed, and $5000 minimum would be needed so as to successfully initiate any process of inquiry and launch any necessary legal collaboration.

Those are just the costs to start, they do not include costs per hour needed for the ongoing legal battle, as nobody is doing this for free.

Questions asked of the legal group were,

1) How would I go about challenging these laws in federal court (possibly under 42 USC § 1983) and and how long do I (or anyone else for that matter) have to do so now that the bills have been signed into law?

2) What is the process for developing a case such that various people across the state could become involved as plaintiffs in a bill of peace, a.k.a. class action lawsuit?

In order to answer these questions they wanted money up front obviously. Their time is worth money. I think this should be obvious.

I am not asking for anything from anyone here. To be perfectly clear I am not here to ask for any money from anyone for any legal case. I want to however make it clear that I've already looked into it and that's just what it costs to get it started if I were to use an experienced, well known pro-gun legal firm that has actually had a good record of victory.
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Old 04-23-2017, 10:59 PM
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Read the En Banc Peurta opinion and reassess your posistion they 9th circuit is out to get us.
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Old 04-24-2017, 2:56 AM
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Read the En Banc Peurta opinion and reassess your posistion they 9th circuit is out to get us.
Hey, I never suggested that we should plan for a party at the 9th Circus.

It would be my guess that anyone with a real case (and a real lawyer team worth their salt) would prepare for a long haul, that is, the appeals. Never assume that anything passed and signed into law in CA will be defeated by CA courts.

As I see it there are two pathways here and they can run concurrently:

1) The courts

2) Congress (federal preemption) e.g. this
https://www.facebook.com/repealuncon...24729020883343

Most definitely I don't think we want to assume that "the courts" are the sole solution here given the basic math. The basic math of this situation is (even if you have a court case that would be totally victorious), in the time it takes for the court case to be seen through (filing, appeals, all the way through to final decision), the state then has had the opportunity to pass more unconstitutional laws. In fact, from October 2013 through October 2014, there were 20 gun control bills in California that ended up getting signed into law by the Governor alone, and in 2015-2016 legislative session, there were seven gun control bills (remember Gunpocalypse?) signed into law - plus Prop 63 in November 2016. So basically, we got the equivalent of eight unconstitutional gun laws in 2016. And they are working on more as I type this. Do the math: They are simply making laws as fast as they can, in the knowledge and understanding that we simply don't have the time and resources to deal with what they are doing in the courts, because the court processes are slower than their legislative processes.

Incrementally, the approach of the Legislature is to introduce more bills, ensure that some or all of them will pass, and year after year gradually destroy the ability of all Californians to exercise the 2nd Amendment right. Effectively we are already there.

That is why I assert that a vital element of this struggle is not merely addressing this issue in the courts (although the courts are important) but also working to get Congress to pass a law with provisions for federal preemption to make state gun control laws null and void as proposed here:

https://www.change.org/p/u-s-house-o...estoration-act
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Old 04-24-2017, 6:00 AM
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The argument that as someone not licensed as a firearm manufacturer, which is required if you are in the business of manufacturing firearms, you can not be said to have manufactured a firearm is extremely flimsy in my opinion.
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Old 04-24-2017, 6:12 AM
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Thanks Freethinkr - I've printed off your post. Meeting with Gov Brown today for lunch. I suspect this to be an easy change. Thanks for the clarifications.
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Old 04-24-2017, 9:11 AM
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OP you're going to get a lot of push back because we've lost so many times. I've been in this fight for 30 years, and except for a couple wins post Heller, we've done nothing but lose ground here in CA. And post Heller, we all got really exited, kind of like you are now. We not only have the Constitution on our side, we now have the law on our side! We have precedent on our side! We have SCOTUS on our side! We can win! Followed by endless crushing defeats. Endless twisted logic and bad rulings against us. Loss after loss after loss after loss. And every so often, a fresh excited newb comes along and makes a post like yours. So it can be annoying to say the least.

I'm not saying we will always lose. Trump won the presidency. That saved SCOTUS. So nationally we may win again. But only losses are likely for California's foreseeable future. The entire legislature is against us. The governor is against us. Most of the citizens of this state are against us. ALL the courts are against us. The Ninth Circuit is against us. And the Ninth will ignore SCOTUS precedent, Every. Single. Time. And how many of those times will the case make it to SCOTUS? Once or twice, at best in your lifetime. Most likely never. Get ready to be severely and repeatedly disappointed.
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Old 04-24-2017, 9:44 AM
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Thanks Freethinkr - I've printed off your post. Meeting with Gov Brown today for lunch. I suspect this to be an easy change. Thanks for the clarifications.
Ha! Best post in thread.

BTW don't forget to wear a high-speel rail t-shirt; do yhat and you're golden.
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Old 04-24-2017, 9:52 AM
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OP you're going to get a lot of push back because we've lost so many times.
He's also getting pushback because it's not easy, and if it was, it would have been done already.

Furthermore, we don't need an "ideas man" telling us what to do. Pointing is easy, and opinions are never worth more than what they cost. Doing is the hard part.
Expounding without a useful grasp of the law is the easy part.

Post #1 can be summed up in one of my favorite quips - "Take my advice, I'm not using it."

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Old 04-24-2017, 9:55 AM
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Even if everything you said makes sense and was 100% true, we are not in a logical world here. All the courts and almost all the politicians are aligned against us. There are no impartial judges here. I made the same mistake and assumed a fair, impartial court. Look at the record of the 9th. It will all make sense then.
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Old 04-24-2017, 10:05 AM
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He's also getting pushback because it's not easy, and if it was, it would have been done already.
Yeah. Not only is it not easy. It is damn near impossible. And he's saying it's easy. That is pretty annoying.
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Old 04-24-2017, 12:55 PM
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The argument that as someone not licensed as a firearm manufacturer, which is required if you are in the business of manufacturing firearms, you can not be said to have manufactured a firearm is extremely flimsy in my opinion.
Let me make this more simple because the definitions do make it tough to understand.

1) You are not a manufacturer unless you are engaged in the business. ATF has details about what it means to be engaged in the business.

2) If you are an unlicensed person, you can go right ahead and engage in subtractive machining to finish an "eighty percenter" (or what some companies have offered as a "ninety-five percenter," which is the almost done version*, or what other companies offer as a "zero percent" which is a totally unmachined raw forged item). The key being that you must do it yourself. The ATF suggests that you serialize it and it is strongly recommended, but there is no requirement that the numbers / letters / initials / date that you provide as your personal serialization have to be sent to law enforcement / state / federal government. There is no registration requirement in other words.

*A side note regarding "ninety-five percenters" distributed by American Spirit Arms: As determined by the Firearms Technology Branch of the ATF, this lower receiver is not classified as a "firearm" as defined by the GCA of 1968. The ATF examination confirmed that the American Spirit Arms forging has been partially machined, but has no machining of any kind performed in the area of the trigger/hammer recess, and therefore is not classified as a "firearm" and may be sold as such under applicable federal and state laws. Various companies also provide "eighty percenters" which similarly are not firearms and can be sold without having to be transferred through an FFL.

Additional federal limitations which have long existed for unlicensed persons making their own receiver are that the receiver cannot be sold or otherwise transferred.

3) If you are an unlicensed person and you make a finished receiver out of an 80 percenter, and you later get an 07 FFL, you would be able to engage in transfer of your finished receiver, but you would also have to get US Department of State manufacturers permission, which is on top of the 07 FFL, 2,250 dollars.. details here https://www.pmddtc.state.gov/registration/arf.html
Items transferred do have to meet very specific physical requirements, e.g. certain serialization requirements that manufacturers have to do, etc., to meet federal mandated stuff - many rules.
If you are engaged in the business and have an 07 FFL, there are some things that State considers manufacturing and some things that do not, this guidance was from July 2016 and may have changed since then since the new administration rolled in (this is for people who are engaged in the business and have their manufacturers license).

So who actually does have to pay the U.S. State Dept. / ITAR fee? Who's actually a "manufacturer," in other words, who would have to go down this path?

From the law office of John Pierce, Esq. (contact him with any questions, by all means):

"The regulation which governs the registration requirement makes it clear.

Any person who engages in the United States in the business of either manufacturing or exporting defense articles or furnishing defense services is required to register with the Directorate of Defense Trade Controls. For the purpose of this subchapter, engaging in the business of manufacturing or exporting defense articles or furnishing defense services requires only one occasion of manufacturing or exporting a defense article or furnishing a defense service. Manufacturers who do not engage in exporting must nevertheless register.

As for what constitutes ‘defense articles’, 22 USC 121 contains a complete listing under what is known as The United States Munitions List (USML). The very first item listed is “Nonautomatic and semi-automatic firearms to caliber .50 inclusive.” It goes on to include “Ammunition/ordnance for the articles [above].”

The short answer is that those licensed to manufacture firearms or ammunition are covered by ITAR and are required to register and pay the registration fee."


So again, if you are licensed to manufacture, or plan on selling / transferring something that you make, you are going to have to need not only the 07 FFL, but also you will need to register with State, pay the ITAR fee etc (that is if you don't want to get into trouble down the road).

If you are an unlicensed person making (NOT MANUFACTURING!) a receiver in your own home, with your own drill press, simply engaging in subtractive machining, and you will not be selling or otherwise transferring the item you finish, there is NO requirement that you get a manufacturers license or pay any fee. And you are NOT MANUFACTURING anything. (Nor are you assembling, under AB 1964 / AB 857... as was explained previously.)

This is not a flimsy argument, it's quite clear.
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Old 04-24-2017, 12:57 PM
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Boy - I HOPE someone will break it to Chuck Michael softly! Here I WASTED all that time in law school for nothing.
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Old 04-24-2017, 1:07 PM
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Yeah. Not only is it not easy. It is damn near impossible. And he's saying it's easy. That is pretty annoying.
To be fair I did walk back on that statement regarding it being "easy."

But be my guest, I mean if this thread annoys you, by all means, be annoyed.
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Old 04-24-2017, 1:21 PM
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Boy - I HOPE someone will break it to Chuck Michael softly! Here I WASTED all that time in law school for nothing.
I'm guessing that there are not millions (or even several thousands) of Californians who are leaping at the chance to:

1) Get an 07 FFL because someone says they "just should" (even though they are not manufacturers and don't meet any federal definition of such)

2) Pay US State / ITAR fee for the same

3) Grind out an eighty percenter in their garage after having paid thousands of dollars for said licenses (only after first applying to the state for permission to do so, and asking the state for a number that one would be allowed to imprint upon the gun, under a law that forbids doing serialization without the imposition of state-mandated speech upon the item - a form of prior restraint - only to watch as the State later passes a new law claiming that the build they've disclosed to the State is now being deemed as subject to seizure)

An unlicensed person in their own home doesn't need to do all that, shouldn't have to put up with or go through all that nonsense. Since the time of founding of the country, people have built their own firearms essentially without governmental restraint (and indeed without even any requirement for serialization or registration) in all 50 states.

As I see it, a court case to overturn AB 857 (2016) (and possibly AB 1964 (2014)) will occur one of two ways:

1) Either someone (an individual or a gun organization / group of plaintiffs) will challenge it, or,

2) the State of California will arrest or bring someone up on charges related to it and thus will trigger the ability of the person to counter with a case against not only the charges but against the law itself, which arguably violates the 1st and 2nd Amendment.

Argue against this idea if you want, but it sounds to me like there are some people reading this thread who have a vested interest in seeing the status quo remain (with AB 857 etc.) because they don't like the surge in interest in people making their own receivers in their own homes; it's beginning to take business away from certain firearms manufacturers.

Personally, IDGAF about that. I am just interested in people's rights being defended which is why I wrote this piece.

Have nice day.

edit: Just after I wrote this, news was released that Rupp v. Becerra is in the pipeline and that NRA is supporting said lawsuit. While I haven't read the filing yet for the lawsuit, and I don't yet know precisely what's being challenged, I think it's a good start and very timely to hear of NRA backing in suits against the State's unconstitutional gun laws.
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Old 04-24-2017, 2:35 PM
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Oaky, so I met with Gov Brown at lunch and all went well. He apologized for signing each and every recently introduced firearms bills, stating that he was fed misinformation. At 1700 today, he will rescind all firearms laws for the state of California. That was much better than expected. I apologize to all of you for not making the appointment earlier. Had I known it was going to be this easy, I would have set a lunch date much sooner.
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Old 04-24-2017, 6:53 PM
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Oaky, so I met with Gov Brown at lunch and all went well. He apologized for signing each and every recently introduced firearms bills, stating that he was fed misinformation. At 1700 today, he will rescind all firearms laws for the state of California. That was much better than expected. I apologize to all of you for not making the appointment earlier. Had I known it was going to be this easy, I would have set a lunch date much sooner.

I'm not sure which is more annoying on Calguns: someone who is very eager and optimistic and thinks something may be easier than it really is, OR someone who sarcastically dismisses that person's enthusiasm with a single paragraph.

If Calguns members cannot figure out how to find a middle ground between these two extremes, then we are surely doomed.
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Old 04-24-2017, 6:58 PM
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OP, appreciate the energy, positivity and enthusiasm.
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Old 04-24-2017, 7:25 PM
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I'm not sure which is more annoying on Calguns: someone who is very eager and optimistic and thinks something may be easier than it really is, OR someone who sarcastically dismisses that person's enthusiasm with a single paragraph.

If Calguns members cannot figure out how to find a middle ground between these two extremes, then we are surely doomed.
It was a joke. That's it. Nothing more.

I take my rights just as serious as you or anyone else on this board, and I donate a healthy amount of money several times a year to organizations of my choice. I am also the shotgun project leader for my local 4H, and despite owning several hundred acres, and leasing much much for my my cattle business where I can freely shoot anywhere I dang well please, I also freely donate physical time to my nearest gun range that takes me 45 minutes to drive to. I only use the range for CCW re-cert but they have an amazing training program that I want to help keep alive. So before you paint me with a broad brush, please be careful of your judgement.
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Old 04-24-2017, 9:11 PM
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Originally Posted by freethinkr View Post
Let me make this more simple because the definitions do make it tough to understand.

1) You are not a manufacturer unless you are engaged in the business. ATF has details about what it means to be engaged in the business.

2) If you are an unlicensed person, you can go right ahead and engage in subtractive machining to finish an "eighty percenter" (or what some companies have offered as a "ninety-five percenter," which is the almost done version*, or what other companies offer as a "zero percent" which is a totally unmachined raw forged item). The key being that you must do it yourself. The ATF suggests that you serialize it and it is strongly recommended, but there is no requirement that the numbers / letters / initials / date that you provide as your personal serialization have to be sent to law enforcement / state / federal government. There is no registration requirement in other words.

*A side note regarding "ninety-five percenters" distributed by American Spirit Arms: As determined by the Firearms Technology Branch of the ATF, this lower receiver is not classified as a "firearm" as defined by the GCA of 1968. The ATF examination confirmed that the American Spirit Arms forging has been partially machined, but has no machining of any kind performed in the area of the trigger/hammer recess, and therefore is not classified as a "firearm" and may be sold as such under applicable federal and state laws. Various companies also provide "eighty percenters" which similarly are not firearms and can be sold without having to be transferred through an FFL.

Additional federal limitations which have long existed for unlicensed persons making their own receiver are that the receiver cannot be sold or otherwise transferred.

3) If you are an unlicensed person and you make a finished receiver out of an 80 percenter, and you later get an 07 FFL, you would be able to engage in transfer of your finished receiver, but you would also have to get US Department of State manufacturers permission, which is on top of the 07 FFL, 2,250 dollars.. details here https://www.pmddtc.state.gov/registration/arf.html
Items transferred do have to meet very specific physical requirements, e.g. certain serialization requirements that manufacturers have to do, etc., to meet federal mandated stuff - many rules.
If you are engaged in the business and have an 07 FFL, there are some things that State considers manufacturing and some things that do not, this guidance was from July 2016 and may have changed since then since the new administration rolled in (this is for people who are engaged in the business and have their manufacturers license).

So who actually does have to pay the U.S. State Dept. / ITAR fee? Who's actually a "manufacturer," in other words, who would have to go down this path?

From the law office of John Pierce, Esq. (contact him with any questions, by all means):

"The regulation which governs the registration requirement makes it clear.

Any person who engages in the United States in the business of either manufacturing or exporting defense articles or furnishing defense services is required to register with the Directorate of Defense Trade Controls. For the purpose of this subchapter, engaging in the business of manufacturing or exporting defense articles or furnishing defense services requires only one occasion of manufacturing or exporting a defense article or furnishing a defense service. Manufacturers who do not engage in exporting must nevertheless register.

As for what constitutes ‘defense articles’, 22 USC 121 contains a complete listing under what is known as The United States Munitions List (USML). The very first item listed is “Nonautomatic and semi-automatic firearms to caliber .50 inclusive.” It goes on to include “Ammunition/ordnance for the articles [above].”

The short answer is that those licensed to manufacture firearms or ammunition are covered by ITAR and are required to register and pay the registration fee."


So again, if you are licensed to manufacture, or plan on selling / transferring something that you make, you are going to have to need not only the 07 FFL, but also you will need to register with State, pay the ITAR fee etc (that is if you don't want to get into trouble down the road).

If you are an unlicensed person making (NOT MANUFACTURING!) a receiver in your own home, with your own drill press, simply engaging in subtractive machining, and you will not be selling or otherwise transferring the item you finish, there is NO requirement that you get a manufacturers license or pay any fee. And you are NOT MANUFACTURING anything. (Nor are you assembling, under AB 1964 / AB 857... as was explained previously.)

This is not a flimsy argument, it's quite clear.
Why are you wasting time lecturing us? Isn't there a judge somewhere you should be educating? Dood, it's easy! Just go to court and tell them!
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Old 04-25-2017, 6:17 AM
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Quote:
Originally Posted by freethinkr View Post
1) You are not a manufacturer unless you are engaged in the business. ATF has details about what it means to be engaged in the business.
On this point, we are in agreement. The ATF goes into detail on what defines a manufacturer (i.e. the entity) and, further, details numerous requirements levied on said entity.

What is missing, what you are implying, and what your argument hinges on, is that there is extremely tight coupling between that definition and the definition of manufacture (i.e. the act) to the point where unless a person is engaged in the business, nothing they do can ever be considered manufacturing.

Now, the plain definition of manufacture *does* imply a certain scale to the activity, and one could make the argument that home builds for personal use do not fall under the definition as a result, but what I'm saying is that the ATF's definition of manufacturer (again, the entity) does not make that argument for you as you're claiming it does.
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Old 04-25-2017, 8:58 PM
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On this point, we are in agreement. The ATF goes into detail on what defines a manufacturer (i.e. the entity) and, further, details numerous requirements levied on said entity.

What is missing, what you are implying, and what your argument hinges on, is that there is extremely tight coupling between that definition and the definition of manufacture (i.e. the act) to the point where unless a person is engaged in the business, nothing they do can ever be considered manufacturing.

Now, the plain definition of manufacture *does* imply a certain scale to the activity, and one could make the argument that home builds for personal use do not fall under the definition as a result, but what I'm saying is that the ATF's definition of manufacturer (again, the entity) does not make that argument for you as you're claiming it does.
I would suggest that you are correct, and that the ATF's definition alone does not by itself make the argument. In a legal case, I think you would also need to rely upon vagaries (e.g. the "void for vagueness" issue) in AB 857 (2016) and upon other issues which I will not expound upon here further at length. Although I think my initial post and followup comments were quite lengthy, and would suffice in consideration of the matter of 1st Amendment restrictions and bill of attainder problems posed by the laws in question (remember, prior restraint is prohibited by law, and the State has already violated that with these laws), there are more ways to attack the laws in question, more ideas I have that I would not go into depth about here. I would rather share them with a lawyer. Apart from that, there are unfortunately too many voices here who seem to be aligned either with a quaint liberal notion of what the 2nd Amendment is, or they are associated with traditional gun rights' manufacturers' resolve to keep the status quo despite the burgeoning development of technologies that allow people to build things themselves. In light of that, I would rather not describe my full proposed legal strategy here, but I certainly will continue to share it with competent legal counsel moving forward, who will then no doubt modify it and provide their own form of attack.

I would suggest you do the same. Everyone will need to defend their full rights under the 2nd Amendment and that includes the ability to build something that you can later shoot and, I would argue, eventually transfer to your family members (although transfer of what you build as an unlicensed person is not what the law currently allows).

In the meantime, people across California, and indeed, across the nation, will continue building, and most will not be seeking serial numbers issued by the state nor will they provide the state evidence of anything they have built. This is as it has been since the founding of our nation in the case of an uncountable number of thoughtful and diligent builders and innovators, and it will continue to be the case.
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Old 04-25-2017, 9:04 PM
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NO challenge is possible unless somebody bothers to look at the body of law for flaws.

Thank you OP, for trying.
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Old 04-25-2017, 9:26 PM
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Originally Posted by robertkjjj View Post
I'm not sure which is more annoying on Calguns: someone who is very eager and optimistic and thinks something may be easier than it really is, OR someone who sarcastically dismisses that person's enthusiasm with a single paragraph.

If Calguns members cannot figure out how to find a middle ground between these two extremes, then we are surely doomed.
BOTH are annoying and tend to end badly.

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Originally Posted by August View Post
It was a joke. That's it. Nothing more.
Actually it is a sarcastic dig at another member and those again tend to end badly.
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Old 04-25-2017, 9:35 PM
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No matter what your opinions are on freethinkr's thoughts, right, wrong or misinformed, at least he is engaged and trying to look at options.

Rather than disparage, educate.
We need everyone we can get on our side.
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Old 04-25-2017, 10:01 PM
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We need everyone we can get on our side.
Everyone?! Unno 'bout that.
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Old 04-25-2017, 10:09 PM
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Everyone?! Unno 'bout that.
Then you're not looking to win.
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Old 04-25-2017, 10:14 PM
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Quote:
Originally Posted by Kestryll View Post
No matter what your opinions are on freethinkr's thoughts, right, wrong or misinformed, at least he is engaged and trying to look at options.

Rather than disparage, educate.
We need everyone we can get on our side.
Given the vote on Prop 63, that may qualify as the understatement of the year.

But yes, we need to keep reminding ourselves maintaining civility serves us best.
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Old 04-25-2017, 10:18 PM
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toddh was on our side. wildhawker, anyone?

Some brilliant people are socially challenged. Some social butterflies don't know their head from their backside.

The boards can destroy some great advocates. They can also raise up a regular Joe.

If OP's message isn't being received well, maybe that's on the messenger.

As for winning. I fight because it's right, regardless the outcome.
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Old 04-27-2017, 7:32 PM
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I appreciate all the thoughts on this conversation.

Some other perhaps related threads (in which I've posted on the subject) are here, and also here and here, too.
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