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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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  #161  
Old 11-23-2022, 3:09 PM
TruOil TruOil is offline
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Originally Posted by GetMeCoffee View Post
So the effect is (see emphasis above) that the State can place conditions on open carry, or on concealed carry, or on both - so long as the conditions allow unencumbered carry of some type (unencumbered meaning per conditions rooted in applicable history).

But this is not the current situation in CA. The State says you need GMC, GC and permission for CCW. This case is not questioning that. Since CCW is encumbered, it follows that OC cannot be encumbered (one mode needs to be unencumbered). So I understand mcbair's comment that there are only two ways out. Either 25850, 26350 and 26400(?) get stricken, or the State un-encumbers CCW so that 25850 et al can stand.) All that said, I'm sure I missed some nuance.
With respect to a "shall issue" permit to carry, it is not the carrying that is being encumbered so much as the particular individual who is doing the carrying. Under current law (and no, I have no idea how far back those laws go) felons have lost their civil rights, including their rights under the Second Amendment (along with loss of the right to vote, only recently modified in a few jurisdictions). However, GC (which is history) GMC (which will be gone soon enough) and training requirements are constitutionally suspect as are letters of referral and all the other rigamarole that the southern counties require. Do you believe that felons shold be allowed to carry firearms without restriction? What about adjudicated paranoid schizophrenics?

As a separate point, some sensitive places restrictions go back a long way. For example, it is illegal to carry a loaded firearm into the Senate Chamber or into the cloak room, the result of a gunfight in the latter location due to overheated politics. Restrictions on carry in or near polling places go back well into the 19th century as a remedy to regular occurrences of voter intimidation. Bruen suggests that some LIMITED restrictions on when and where will pass scrutiny. For example, bans on public transportation are likely to fall, as well as carry in parks and most public buildings or open spaces. But schools and courthouses will likely remain., even if not complying with the Bruen standard.

On the other hand, restrictions against carry in court rooms, at least in California, are not only of recent origin, they are nonstatutory court imposed rules; the Penal Code allows the carrying of firearms in court houses. Bans on loaded firearms in the California Capital building only go back to 1969. Those, and the ban on carry in schools, also new, are constitutionally suspect under Bruen, but are a tough nut to get rescinded by court order.
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  #162  
Old 11-23-2022, 3:14 PM
mcbair mcbair is offline
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Reconstruction history was abjectly rejected by NYSRPA with a narrow exception to history which is used to confirm the founding history in 1791. The Texas case was specifically rejected by the Bruen court as an “outlier” along with the few other reconstruction and western examples and late 19th century examples of short lived bans on open carry.

I’m not against concealed carry. Sometimes for some people in some circumstances it isn’t a bad idea. It is the utter corruption of a tyrannical state sitting in judgement over the exercise of an inalienable, human right, to which I object most strongly. If I have anything to say about this, it will not stand.

Last edited by mcbair; 11-23-2022 at 3:17 PM.. Reason: Misplaced wording
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  #163  
Old 11-23-2022, 4:19 PM
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They were enforced in Texas against everyone, as I recall. And it took over a century to get them rescinded. But yes, most in the south were racist in origin and intent. Texas was a special case where the military authorities had good reason to suspect breaches of the peace against Union soldiers.
I'm not trying to argue with you Counselor - really I'm not - but are you REALLY trying to argue that Texans haven't been able to bear arms outside the home? Are you familiar with their laws that say their cars are an extension of their home??

Point being I think you'd be hard pressed to find many Texans that don't do just about what they want when it comes to guns.
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  #164  
Old 11-23-2022, 5:13 PM
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Sometimes for some people in some circumstances it isn’t a bad idea. It is the utter corruption of a tyrannical state sitting in judgement over the exercise of an inalienable, human right, to which I object most strongly. If I have anything to say about this, it will not stand.
So let me repeat the last question I asked you, which I assume the judge will ask you as well: Do you think that post-release felons should be allowed to bear arms as a matter of right? Limiting that question to those convicted of violent felonies, do you think that violent offenders should be given free reign to keep and bear firearms? From what I have seen so far, I don't think the Supreme Court is willing to go that far. Is the risk of recidivism high enough to warrant life time bans, either generally or on a case by case basis? What about violent schizophrenics?
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  #165  
Old 11-23-2022, 5:22 PM
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... Do you believe that felons shold be allowed to carry firearms without restriction? What about adjudicated paranoid schizophrenics?

As a separate point, some sensitive places restrictions go back a long way. ...
I perhaps should have included these in my earlier post. When I chose the term "unencumbered" I meant it to refer to the right to bear as laid out by the NYSRPA/Bruen majority. To paraphrase, no GC, no GMC, no discretion, but subject to restrictions rooted in applicable history (e.g. felons, short list of sensitive places, etc.)

But that's all beside the point I was trying to make. Since CA currently forbids open carry, and CCW is encumbered, then it would seem that the judge's only choice is to find in mcbair's favor. The only other way out would be if CA radically changes it's CCW laws so that the judge can say that CCW satisfies the Bruen requirements and therefore to OC ban can stay.

Again, I realize that the outcome is likely to be less straightforward and will use delays, byzantine processes and word games to avoid the logical outcome.
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  #166  
Old 11-23-2022, 7:31 PM
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True Oil,
No we are not asking for felons, mentally deranged, domestic abusers or anyone else with federal or state prohibitors to be “allowed” to carry. We are not targeting sensitive places either, at least not yet. We did not include riffles in the complaint in order to keep our complaint as narrow as possible. We have never alleged that the unqualified command of the Second Amendment includes criminals. Those are fights for someone else, some other day. Throughout the proceeding the State’s attorney has tried again and again to conflate the issue that it would seem we want felons to carry. We have rebuffed this lie in open court and it is in the transcript. The Judge did ask whether we want “just anyone, violent felons, or those who refuse to attend a training class, to openly carry.” Her words not mine. An odd worry mixing violent felons with people who refuse training but hey. My attorney answered,” No your honor, law abiding citizens, have a right to openly carry a loaded weapon.” “ There are federal and state laws which already criminalize people who are prevented from owning a firearm, from carrying a firearm.” Judge Muller then asked state’s attorney whether he agreed with us. He lied of course, and responded, “ No your honor anyone could carry a gun.” A few minutes later he modified his statement when questioned by the judge to reflect a more truthful response that there were already Penal Codes for felon in possession, domestic abuse, restraining orders, and prohibitions on those adjudicated mentally defective. A state that is willing to lie to deny Liberty certainly should not, and according to the United States Constitution, and the California Constitution is prohibited from passing judgement upon, ( states answer to our complaint), “who may carry in the streets and towns of California.”
We have a Right! Rights are not permissions.
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  #167  
Old 11-23-2022, 8:17 PM
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Originally Posted by mcbair View Post
True Oil,
No we are not asking for felons, mentally deranged, domestic abusers or anyone else with federal or state prohibitors to be “allowed” to carry. We are not targeting sensitive places either, at least not yet. We did not include riffles in the complaint in order to keep our complaint as narrow as possible. We have never alleged that the unqualified command of the Second Amendment includes criminals. Those are fights for someone else, some other day. Throughout the proceeding the State’s attorney has tried again and again to conflate the issue that it would seem we want felons to carry. We have rebuffed this lie in open court and it is in the transcript. The Judge did ask whether we want “just anyone, violent felons, or those who refuse to attend a training class, to openly carry.” Her words not mine. An odd worry mixing violent felons with people who refuse training but hey. My attorney answered,” No your honor, law abiding citizens, have a right to openly carry a loaded weapon.” “ There are federal and state laws which already criminalize people who are prevented from owning a firearm, from carrying a firearm.” Judge Muller then asked state’s attorney whether he agreed with us. He lied of course, and responded, “ No your honor anyone could carry a gun.” A few minutes later he modified his statement when questioned by the judge to reflect a more truthful response that there were already Penal Codes for felon in possession, domestic abuse, restraining orders, and prohibitions on those adjudicated mentally defective. A state that is willing to lie to deny Liberty certainly should not, and according to the United States Constitution, and the California Constitution is prohibited from passing judgement upon, ( states answer to our complaint), “who may carry in the streets and towns of California.”
We have a Right! Rights are not permissions.
When the judge asked whether you want “just anyone, violent felons, or those who refuse to attend a training class, to openly carry?” Your attorney should have responded that "my client does not have standing to argue those claims." So those questions are not before the court!

Last edited by BAJ475; 11-23-2022 at 8:18 PM.. Reason: correct typo
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  #168  
Old 11-23-2022, 8:56 PM
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When the judge asked whether you want “just anyone, violent felons, or those who refuse to attend a training class, to openly carry?” Your attorney should have responded that "my client does not have standing to argue those claims." So those questions are not before the court!
What difference does it make ? That's not part of a second amendment analysis.
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  #169  
Old 11-24-2022, 8:59 AM
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The proper response would have been "Your Honor, I am unaware of any enumerated right where the People's servants can condition exercise of the right based on being willing to subject themselves to things like training. We don't condition voting on training, nor the right to counsel, or to assemble, nor protection from takings. In fact, your Honor, the People are PRESUMED to be capable of exercising ALL of their rights". This, in fact, cuts to the very core of our case.
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  #170  
Old 11-24-2022, 9:36 AM
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Friends, Yep perhaps all the above could have been said. No matter though, judge of course denied our objection to her schedule. This judge is a Democrat party operative and does a better job for California’s agenda than does the DOJ.
We will move for summary judgement just to get this out of her court. I never expected Justice here. But no politics today! Happy Thanksgiving to all of you and may all of Gods Blessings be with you and your families. May he lead our nation back to its beginnings in Liberty!
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  #171  
Old 11-24-2022, 11:37 AM
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What difference does it make ? That's not part of a second amendment analysis.
Where is your sense of humor? I was merely suggesting a way to tell the judge that her questions had nothing to do with the case before her without being too insulting. On the other hand I think that I was outdone by Drivedabizness.
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  #172  
Old 11-24-2022, 11:47 AM
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I picked up on it, but could not concede a joke well put to a Marine!
Army Air Corps…the one true Air Force!! Happy thanksgiving!
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  #173  
Old 11-24-2022, 2:14 PM
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I picked up on it, but could not concede a joke well put to a Marine!
Army Air Corps…the one true Air Force!! Happy thanksgiving!
The point was how to tell the Judge that she is supposed to be neutral and detached and not an advocate for the state in such a way as to not be too insulting or at least be able to defend your comment as not contemptable, despite the biased nature of her questions. Drivedabizness also had a good suggestion. If it comes up again you could point out that open carry without a permit is the norm and the law in 32 of the 50 states. Apparently, those states do not share the court's concerns or find them to be overblown. Those 32 states are: Alaska, Washington, Idaho, Nevada, Arizona, Utah, Wyoming, Montana, New Mexico, South Dakota, Kansas, Oklahoma, Texas, Louisiana, Arkansas, Iowa, Wisconsin, Michigan, Indiana, Iowa, Kentucky, Tennessee, Mississippi, Alabama, Georgia, North Carolina, Virginia, West Virginia, Delaware, Vermont, New Hampshire and Maine. If those states that are permitless open carry but allow local restrictions are included the number increases to 37 states and Oregon, Colorado, Nebraska, Missouri and Pennsylvania have to be added to the list where open carry without a permit is the rule. Furthermore, there are 25 states, including Missouri, that allow the carrying of concealed handguns without a permit or license. The bottom line is that open carry without a permit was clearly the law at the time of the founding and is clearly the law today in most states.
Happy thanksgiving and good luck.
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  #174  
Old 11-24-2022, 3:22 PM
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Where is your sense of humor? I was merely suggesting a way to tell the judge that her questions had nothing to do with the case before her without being too insulting. On the other hand I think that I was outdone by Drivedabizness.
I think the questions was totally legitimate under the prior two step process. But the humor is/was lost on me. Drivedabizness put it well tho.
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  #175  
Old 11-24-2022, 8:31 PM
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I think the questions was totally legitimate under the prior two step process. But the humor is/was lost on me. Drivedabizness put it well tho.
I did not say that your question was not legitimate. You were being serious while I was not, although I think that my point has validity in that the judge was going beyond the case in front of her. As I later responded to mcbair, my point was merely a suggestion of how his attorney could have told the judge that she is supposed to be neutral and detached and not an advocate for the state in such a way as to not be too insulting or at least being able to defend the comment as not contemptable, given the biased nature of her questions and their irrelevancy to the issues before her. If you cannot see the humor of sticking it to a biased judge in a way that avoids contempt, what can I say? Let me suggest that Drivedabizness was doing the same thing with his comment about her lack of training question. In my mind his comments essential would tell the judge that her training question demonstrated a lack of understanding of constitutional rights that made her unfit to be a judge. In other words a FU to the judge without risking contempt.
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  #176  
Old 11-24-2022, 9:26 PM
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I remember Counselor Gura telling Justice Sotomayor (words to this effect) that action by a legislative or judicial body that was unconstitutional, even if there was a "process", did not bootstrap constitutionality to it. I appreciate the kind words - I believe we have to be a lot more vocal in telling judges, even recalcitrant judges (and other "public servants") that our issues aren't even close as a matter of law. They weren't close BEFORE Bruen. (SCOTUS merely clarified that for everyone).
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  #177  
Old 11-25-2022, 12:42 PM
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We accused the Judge of abuse of judicial power and abuse of discretion in giving the state a year for discovery that they did not ask for and that they claimed in their filing that they did not need. Her answer……well that’s my ruling, and you are free to object. Result of the objection? Her ruling stands. You think you have rights in California? Try exercising one. We will fight on, and we will win!
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  #178  
Old 11-28-2022, 9:47 PM
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Friends, Yep perhaps all the above could have been said. No matter though, judge of course denied our objection to her schedule. This judge is a Democrat party operative and does a better job for California’s agenda than does the DOJ.
We will move for summary judgement just to get this out of her court. I never expected Justice here. But no politics today! Happy Thanksgiving to all of you and may all of Gods Blessings be with you and your families. May he lead our nation back to its beginnings in Liberty!
The same court will hear the summary judgment motion. And there is no timeline for her to rule upon it. I am following a case in which the defendants filed a msj in the Eastern District in April 2020 that has yet to be ruled upon. The same kind of pocket vetos happened in a number of carry cases in both the district and circuit courts in this state--long delays in issuing decisions.
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  #179  
Old 11-28-2022, 11:03 PM
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TruOil, I agree. Judges steal our Liberty every day. I have been in this judges court many time as a drug interdiction officer and two civil actions for title 42 theft of Liberty cases. She never intends to rule on this case. All we can do is our best. The state has painted itself into a corner in their zeal to ban all Second Amendment exercises. We can win if we can somehow get this in front of an intellectually honest judge, if there is such a thing. Funny, how people think everyone has to tell the truth in court. Usually the judge is the biggest liar in the room. Yes she will delay, but that is the next step.
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