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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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DILLIGAF "Never attribute to malice that which can be adequately explained by stupidity, but don't rule out malice" "Once is Happenstance, Twice is Coincidence, Thrice is Enemy Action" "The flak is always heaviest, when you're over the target" |
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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:
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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; 11-07-2013 at 7:48 AM.. |
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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.
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Life SAF Member Life GOA Member EFF Member x7 |
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Last edited by FABIO GETS GOOSED!!!; 11-07-2013 at 9:23 AM.. |
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"Incorrect" in the sense of "your answers to the math homework are incorrect according to the teacher's guide which has the correct answers"?
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Last edited by FABIO GETS GOOSED!!!; 11-07-2013 at 8:44 AM.. |
#127
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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? |
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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.
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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). |
#129
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"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, the Second Amendment Foundation, and the California Rifle & Pistol Association Last edited by sholling; 11-07-2013 at 10:47 AM.. |
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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.
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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 |
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"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, the Second Amendment Foundation, and the California Rifle & Pistol Association |
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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 |
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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:
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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 |
#134
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FIFY.
If you have a serious point, how can anyone address it with 500 non sequiturs coming in from every direction? "LOL", likewise
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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.
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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). |
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Where in the bolded text is there any reference whatsoever to "proportionality"? I'll quote the relevant bit again for reference: Quote:
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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:
Which is it?
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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; 11-07-2013 at 12:02 PM.. |
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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.
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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. |
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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".
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Life SAF Member Life GOA Member EFF Member x7 |
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FGG, I apologize for not responding to you in-depth, but I've been busy with actual work.
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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. |
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#141
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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.</Devil'sAdvocacyContinues> Quote:
Microstamping isn't about making safer handguns. </Devil'sAdvocacyContinues> -- Michael |
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Let me walk you through it.
When the dissent says: Quote:
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Last edited by FABIO GETS GOOSED!!!; 11-07-2013 at 1:19 PM.. |
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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.
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This is not "devil's advocacy" since it's one of the points our side is making.
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NRA Benefactor Member |
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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.
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NRA Benefactor Member |
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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.]. |
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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?
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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.
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NRA Benefactor Member |
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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).
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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 |
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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. |
#152
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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.
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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). |
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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:
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. |
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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:
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 |
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Kind of like the 1in30 dealer sale rule for handguns... Quote:
-- Michael |
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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.
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NRA Benefactor Member |
#157
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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.
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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 |
#158
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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.
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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; 11-07-2013 at 8:13 PM.. |
#159
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We only wish. Bow-chicka-bow-bow.
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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). |
#160
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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.
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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; 11-07-2013 at 7:41 PM.. |
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