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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel. |
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#81
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The person who penned that opinion is a member of the court, and it would be idiotic to argue that the quoted bit of his opinion does not, in fact, control how he votes on decisions of the court. Moreover, he was joined by three other justices (two of whom have since departed) in his opinion, so one must presume that they, too, agree with the quoted bit of his dissent.
So yes, in fact the Supreme Court also defers to the legislature when there are not sufficient votes in opposition to that.
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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; 11-05-2013 at 7:34 PM.. |
#82
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We have a USDC looking at a state's irrational and overreaching regulatory scheme, that will significantly infringe on 2nd Amend. fundamental rights, especially re micro-stamping issue; also equal protection might fly on that issue and on lci and mag safeties. That micro-stamping has no rational basis given the current state of the industry and has no relationship to the original intent of the law to prevent unsafe handgun availability. It also stifles commerce and denies California residents access to guns in common use-literally all semi-automatic handguns. Last edited by ifilef; 11-05-2013 at 7:42 PM.. |
#83
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You sure you want to hang your hat on this, given the other posts in this thread?
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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." - Kamala Harris Lawyers and their Stockholm Syndrome |
#84
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I just read both summary judgment motions in the case, and ventured my prediction based on those motions. I would deem the micro-stamping unconstitutional and strike it from the Act for reasons cited in Gura brief; and when only 11 and 14% of handguns nationwide have lci and mag disconnect safeties and should basically be ignored according to the CA position in its Handgun Safety Certificate Guide, I'd probably strike those also. Just my opinion.
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#85
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"Rational basis" is another illustration of how the court system has abandoned its mandate as an effective check on the other branches of government.
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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. |
#86
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To me as well. Then again CGF losing a case due to shoddy legal work is nothing new.
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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. |
#87
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Still waiting for a case where you and FGG get a court to apply rational basis to strike down a law. lol™
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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." - Kamala Harris Lawyers and their Stockholm Syndrome |
#88
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Are you talking about the "standard set forth in Turner" mentioned in the dissenting opinion? The "standard set forth in Turner" is (quoting Turner, the standard under consideration is in bold):
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You do agree that when the dissent says "that legal standard" and "the standard set forth in Turner," he is talking about the same thing, right Tincon?
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#89
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CGF should have hammered that IMO.
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#91
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I'm not talking about my statements lol.
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#92
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Oh, the incredible irony of you having said the above in that context...
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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. |
#93
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Tell me, is it that hard to make the connection between this: Quote:
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#94
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So either the opinion really is indeterminate (since your reading of it as regards scrutiny contradicts its plain meaning, and if its plain meaning isn't the right one and, instead, your doublespeak interpretation is, then it means that the decision lacks clarity), or you're wrong. Which is it? You'll note that I didn't back Tincon on his specific method of determination that Heller takes intermediate scrutiny off the table.
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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. |
#95
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Is the first amendment is an enumerated constitutional right? Has intermediate scrutiny been applied to the first amendment? Quote:
Tincon, your position is "that legal standard" and "the standard set forth in Turner" (quoted from adjacent paragraphs in the Heller dissent) are the same thing i.e. intermediate scrutiny, right?
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Last edited by FABIO GETS GOOSED!!!; 11-06-2013 at 7:25 AM.. |
#96
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What, you think that suddenly makes scrutiny exempt from the bit of text I quoted? Either the Supreme Court meant what it said in the passage I quoted (which, for the record, contains no exemptions or carve-outs), or it didn't. Which is it? Quote:
That is the "we have always been at war with Eastasia" argument.
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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. |
#97
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kcbrown,
You are arguing with a Statist. Just like the Congress believes the Commerce Clause gives them Carte Blanche, Fabio, he/she, believes that Government can and does infringe on any Right they choose, whenever they choose, the old 1st Amendment game. The bottom line with the Fabio mentality there really is no reason for a Bill of Rights or Constitution because all Rights and Power emanates from the Government/State and can be curtailed when the mood strikes. Natural Law, the idea behind the Bill of Rights, is no longer considered, it becomes a matter of what Rights the Government will allow. How far we have come from the original intent, with the Circular Law Game. Natural Law is pretty much a dead idea and thus the Bill of Rights takes on a whole new meaning under the Statist Collective Agenda. Nature always has the last laugh, but it takes time, so a single generation never sees the end result and people like Fabio never see how wrong they were.
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"The California matrix of gun control laws is among the harshest in the nation and are filled with criminal law traps for people of common intelligence who desire to obey the law." - U.S. District Judge Roger T. Benitez Last edited by Californio; 11-06-2013 at 10:09 AM.. |
#99
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The first amendment is an enumerated constitutional right. (Presumably the Heller majority is aware of this.)
Intermediate scrutiny has been applied to the first amendment. (Presumably the Heller majroity is aware of this too.) The Heller majority "know[s] of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach" i.e. method of "decid[ing] on a case-by-case basis whether the right is really worth insisting upon." Ergo, the Heller majority does not consider intermediate scrutiny (or strict scrutiny for that matter) to be "a freestanding 'interest-balancing' approach." I get that you think all forms of scrutiny are balancing tests, methods of deciding on a case by case basis, etc.
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#100
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"Interest balancing" is code for "we can rationalize this away eventually using an incremental approach."
Also, I have attached Glock's amicus and CGF's corrected P&A to the OP. |
#101
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Besides the two extremes, there are many shades of gray in between that the court could consider and the most restrictive reading, which is what you suggest, is quite unreasonable and a logical stretch (see below). Quote:
The problem with the often-repeated argument that as long as some handguns are permitted handguns are permitted is that the term "handgun" is a very broad term that includes non comparable firearms. Further, if the "equivalency of handguns" as a hypothesis is to stand (implying that one is a good as the next and that G3 and G4 Glocks are essentially the same), then the roster should actually be struck down as there is no compelling reason to ban G4 while the equivalent G3 is allowed to stand (in the assumed equivalency G4 is no more dangerous than G3). If the argument is that the LCI, magazine disconnect and microstamping make G4 fundamentally different from G3 from the safety perspective, then the roster should again be stricken down as it bans the very common subclass of handguns to which G4 belongs, but G3 doesn't. In this case the "common use" would apply to subclass of G3 (allegedly safe) and subclass G4 (allegedly unsafe) separately - the "common use" would then have to be read that "handguns in subclass of G4, which are common in all other states, cannot be banned." The state must decide whether G3 and G4 are the same (cannot ban G4 because it's the same as the permitted G3) or are different (must allow G4 because that particular class is in common use everywhere else). Either way the roster appears unreasonable.
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NRA Benefactor Member Last edited by IVC; 11-06-2013 at 11:51 AM.. |
#102
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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. |
#103
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- 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 |
#104
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That is why the Statist or Collective view is so dangerous because it is insidiously open-ended and will have no end to which it can be applied to control human behavior, in the end it will lead to tyranny, human history teaches this simple fact.
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"The California matrix of gun control laws is among the harshest in the nation and are filled with criminal law traps for people of common intelligence who desire to obey the law." - U.S. District Judge Roger T. Benitez |
#105
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Scrutiny is not, strictly speaking, about choosing on a case by case basis, it is about choosing on a law by law basis, and a generic act basis. That is, for the most part scrutiny is a facial challenge, not merely as applied. As applied is 'on a case by case basis'.
First, what rights, if any, does the law limit. Second, what aspects of these rights are limited, and how close to the core of the right are they. How this second part becomes a particular level of scrutiny is so far a black box... That and who/what determines 'how core to the right' the aspect of the right that is limited is another point of debate. But they are the important parts.
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Life SAF Member Life GOA Member EFF Member x7 |
#106
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Example: we've all heard of scenarios where a young child gains access to a striker fired gun and unfortunantly shoots themself or another. Responsible owners would not leave such a firearm in said condition unattended in the first place, so these safety features are not really applicable there. Irresponsible owners are unlikely to safe the firearm; the magazine will be in place and the firearm loaded. Which of these firearms are 'more' dangerous in the scenario given: a) a striker-fired polymer gun with no external safety that has an LCI and a mag disconnect? b) a 1911 without LCI/disco but with a grip safety that must be depressed and a manual safety that must be flicked off to fire? c) an H&K P7 with a squeeze cocker that requires a solid grip to overcome? d) a DA/SA pistol that requires a heavy DA initial trigger pull? Of the four, I think most would agree that the 'state-approved' option is the one that is most easily fired by a child. That's a logical argument. Can it be made into a legal one? -- Michael |
#107
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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. |
#108
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FGG seems to have a very good understanding of how the courts (and, I suppose, lawyers) view the issues and cases under discussion. He tells us how the courts will view such things and he is typically pretty correct. Knowing and explaining how the courts will view a situation (and even thinking that it is logical based on the law) is not necessarily the same thing as believing that this is how things ought to be.
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CGN's token life-long teetotaling vegetarian. Don't consider anything I post as advice or as anything more than opinion (if even that). |
#109
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Consider Glocks. Either G3 is more dangerous than G4 and should NOT be grandfathered in, or G3 and G4 are about the same and G4 should NOT be banned. In fact, the state should have not only banned transfer of G3-s, but the possession as well. That's the only consistent position if G3-s are truly unsafe. This would be by far the preferred solution since they would have an extremely high burden to clear to justify a confiscation. If the extra features are not really about safety, but are about a soft policy where the state only believes it would be "a good idea", it can pass the Rational Basis test and not much more. This is insufficient for a protected right, particularly when the extra features are not common in modern firearms and are indeed used to limit supply in CA. Not to mention that microstamping doesn't exist, so requiring this particular feature might not even pass the Rational Basis.
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NRA Benefactor Member |
#110
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No, I'm not making that claim.
I've already quoted the text where the Heller majority identifies the particular aspect of the dissent's "judge-empowering 'interest balancing inquiry'" that differentiates that inquiry from the traditionally expressed levels of scrutiny.
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#111
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If it were sufficient to understand the system and analyze each case to come to an agreement as it would be in, e.g., science, we would never have circuit splits or dissenting opinions. Since we know that dissenting judges are not just "stupid" for not seeing the cases the "right way," there is more at work than the code of civil procedure. So, I would pay a lot of attention to FGG's analysis of cases up to about the level of Court of Appeals, but when it comes to CA/SCOTUS I would also want to hear competing analyses.
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NRA Benefactor Member |
#112
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Are you sure we're disagreeing here ? An "interest balancing test" is not a question of scrutiny. There seems to be some confusion about that... Scrutiny applies to law. Other tests may apply to cases, but scrutiny does not. An "interest balancing test" sounds like something that may apply on a case by case basis, which was in fact rejected by the court.
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Life SAF Member Life GOA Member EFF Member x7 |
#113
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Therefore, by objecting to Breyer's insistence upon using the methods of strict scrutiny, the court is ipso facto objecting to the use of strict scrutiny itself. Because to claim otherwise is to claim that the Supreme Court is objecting to the fact that the interest balancing inquiry isn't being called one of the "traditionally expressed levels", that they object merely to the fact that Breyer is divorcing what scrutiny does from what it's called. There are only three ways you can now go here, and that is either to admit that the Supreme Court contradicted itself within its own decision, or to admit that the Supreme Court means to reject all forms of testing (which include the traditional methods of scrutiny) that are used to "decide, on a case by case basis, whether the right is really worth insisting upon", or to admit that the Supreme Court doesn't mean what it says. The fact that the Court has reversed itself in the past both in terms of entire decisions as well as bits and pieces thereof makes the second option possible.
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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; 11-06-2013 at 4:51 PM.. |
#114
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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. |
#115
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The majority absolutely does object to that description, in the same quote I linked to...where they directly quote Breyer.
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#116
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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? Quote:
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. Quote:
-- Michael |
#117
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I see nothing in the majority's decision that shows that they object to that description, only that they object to the application of what is described.
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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; 11-06-2013 at 5:44 PM.. |
#118
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In what way is that description incorrect?
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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. |
#119
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