Calguns.net  

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

National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

Reply
 
Thread Tools Display Modes
  #1  
Old 03-31-2020, 11:13 AM
wolfwood's Avatar
wolfwood wolfwood is offline
Senior Member
 
Join Date: Mar 2012
Location: San Diego
Posts: 1,370
iTrader: 0 / 0%
Default Federal Judge Destroys DOJ in Opinion on Bump stocks. (Lane v US)

If you read any opinion I link to read this. Its a takings opinion from Texas on the bump stock ban. It denied the government's motion to dismiss. Here is a highlight.

"Perhaps there is one more place, where the collective will and knowledge of the people is expressed, that might indicate if the federal government has seized the police power from the states: the Constitution Wikipedia.49 But strangely, even Wikipedia has overruled neither the Constitution nor the Supreme Court:"
Attached Files
File Type: pdf Lane v United States (bumpstock takings case).pdf (184.2 KB, 285 views)
__________________
“We are twice armed if we fight with faith.”

― Plato
Reply With Quote
  #2  
Old 03-31-2020, 12:17 PM
speedrrracer speedrrracer is offline
Veteran Member
 
Join Date: Dec 2011
Posts: 3,355
iTrader: 1 / 100%
Default

awesome
__________________
Reply With Quote
  #3  
Old 03-31-2020, 12:33 PM
menancyandsam menancyandsam is offline
Member
 
Join Date: Dec 2012
Posts: 217
iTrader: 0 / 0%
Default

A lot of good "gun" related news lately. What the heck is going on?
Reply With Quote
  #4  
Old 03-31-2020, 12:36 PM
Apocalypsenerd's Avatar
Apocalypsenerd Apocalypsenerd is offline
Senior Member
 
Join Date: Nov 2009
Location: Oceanside, CA
Posts: 943
iTrader: 1 / 100%
Default

Quote:
Originally Posted by wolfwood View Post
If you read any opinion I link to read this. Its a takings opinion from Texas on the bump stock ban. It denied the government's motion to dismiss. Here is a highlight.

"Perhaps there is one more place, where the collective will and knowledge of the people is expressed, that might indicate if the federal government has seized the police power from the states: the Constitution Wikipedia.49 But strangely, even Wikipedia has overruled neither the Constitution nor the Supreme Court:"
I find reading legal opinions and briefs to be quite interesting. This one was especially illuminating.
__________________
Let me handle your property needs and I will donate 10% of the brokerage total commission to CG.
Buy or sell a home.
Property management including vacation rentals.
We can help with loans and refi's. 10% of all commissions will be donated to CG.

Serving the greater San Diego area.

Aaron Ross - BRE #01865640
CA Broker
Reply With Quote
  #5  
Old 03-31-2020, 12:51 PM
Mayor McRifle's Avatar
Mayor McRifle Mayor McRifle is offline
Calguns Addict
 
Join Date: Dec 2013
Location: Central Valley
Posts: 7,647
iTrader: 23 / 100%
Default

Quote:
Originally Posted by menancyandsam View Post
A lot of good "gun" related news lately. What the heck is going on?
I don't know. This denial is without prejudice. The federal government can refile its motion to dismiss. And the only real issue here is whether or not the federal government will have to compensate bump stock owners for effectively taking their bump stocks.
__________________
Anchors Aweigh

Reply With Quote
  #6  
Old 03-31-2020, 1:30 PM
TruOil TruOil is offline
Senior Member
 
Join Date: Jul 2017
Posts: 1,847
iTrader: 0 / 0%
Default

Quote:
Originally Posted by Mayor McRifle View Post
I don't know. This denial is without prejudice. The federal government can refile its motion to dismiss. And the only real issue here is whether or not the federal government will have to compensate bump stock owners for effectively taking their bump stocks.
Usually it is once and done on the motion to dismiss, which is the equivalent of a state court demurrer. The court has ruled that a cause of action is stated and the case may proceed, but gave the government an inexplicable "second bite at the apple" for it to assert some valid constitutional basis for concluding that no compensation is due. That could be another motion to dismiss or a motion for summary judgment.

Since posting, I found the time to fully read the opinion. The Government argued it had the police power to regulate these devices in the public interest and without paying compensation--but the judge found that the constitution does not give the Feds police powers. The "second bite" was to allow the Feds to find some other basis in the Constitution that allowed the Feds to "take" without compensation. He hinted, however, that if the feds assert commerce clause power, the feds were going to be buying a lot of bump stocks.

Last edited by TruOil; 03-31-2020 at 8:55 PM..
Reply With Quote
  #7  
Old 03-31-2020, 1:34 PM
Noble Cause Noble Cause is offline
Veteran Member
 
Join Date: Jan 2013
Location: California
Posts: 2,633
iTrader: 0 / 0%
Default

Quote:
Originally Posted by wolfwood View Post
If you read any opinion I link to read this. Its a takings opinion from Texas on the bump stock ban. It denied the government's motion to dismiss. Here is a highlight.

"Perhaps there is one more place, where the collective will and knowledge of the people is expressed, that might indicate if the federal government has seized the police power from the states: the Constitution Wikipedia.49 But strangely, even Wikipedia has overruled neither the Constitution nor the Supreme Court:"
Good read.

Written by:

Brantley David Starr (born 1979)[1] is a United States District Judge of the United States District Court
for the Northern District of Texas.

Appointed by President Trump...
https://en.m.wikipedia.org/wiki/Brantley_Starr


Noble
Reply With Quote
  #8  
Old 03-31-2020, 3:03 PM
pacrat pacrat is offline
I need a LIFE!!
 
Join Date: May 2014
Location: Socialist Republic of SoCal
Posts: 10,220
iTrader: 11 / 100%
Thumbs up

Quote:
Originally Posted by Noble Cause View Post
Good read.

Written by:

Brantley David Starr (born 1979)[1] is a United States District Judge of the United States District Court
for the Northern District of Texas.

Appointed by President Trump...
https://en.m.wikipedia.org/wiki/Brantley_Starr


Noble

Quote:
He has been a member of the Federalist Society since 2005.


KEEP EM COMING DONALD
Reply With Quote
  #9  
Old 03-31-2020, 3:17 PM
Librarian's Avatar
Librarian Librarian is offline
Administrator
CGN Contributor - Lifetime
 
Join Date: Oct 2005
Location: Cottage Grove, OR
Posts: 44,422
iTrader: 4 / 100%
Default 2020 Lane v. United States: bump stock

https://reason.com/2020/03/31/distri...-police-power/
Quote:
Judge Starr of the Northern District of Texas found that the Trump Administration's policy may be unconstitutional
Quote:
Bump stocks allow semi-automatic rifles to fire at a rate close to machine guns. In December 2018, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a final rule determining that bump stocks qualify as prohibited machine guns under federal law and required their destruction or surrender. Brian Lane lawfully purchased three bump stocks before the rule took effect and raises a Fifth Amendment challenge that the federal government must compensate him for taking his property.

The federal government responds that the rule falls under a valid use of the police power, which requires no compensation. But as explained below, the federal government forgot the Tenth Amendment and the structure of the Constitution itself. It is concerning that the federal government believes it swallowed the states whole.

Assuming the federal government didn't abolish the states to take their police power, the Court DENIES the motion to dismiss WITHOUT PREJUDICE. The Court will allow the federal government to try again and explain which enumerated power justifies the federal regulation and whether it allows a taking without compensation. The Court requests that the federal government also address any limits on that federal power and the Court's proper role in examining the validity of the underlying rule when determining if there was a compensable taking.
__________________
ARCHIVED Calguns Foundation Wiki here: http://web.archive.org/web/201908310...itle=Main_Page

Frozen in 2015, it is falling out of date and I can no longer edit the content. But much of it is still good!
"The object of life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane."

- Marcus Aurelius
Ann Althouse: “Begin with the hypothesis that what they did is what they wanted to do. If they postured that they wanted to do something else, regard that as a con. Work from there. The world will make much more sense.”

Not a lawyer, just Some Guy On The Interwebs.



Reply With Quote
  #10  
Old 03-31-2020, 5:21 PM
pdsmith505 pdsmith505 is offline
Member
 
Join Date: Aug 2012
Posts: 188
iTrader: 0 / 0%
Default

That's pretty broad ranging opinion... I like it though!
Reply With Quote
  #11  
Old 03-31-2020, 6:04 PM
gobler's Avatar
gobler gobler is offline
Veteran Member
 
Join Date: Mar 2010
Location: SGV near Azusa
Posts: 3,334
iTrader: 1 / 100%
Default

Reiterate; this is why I will not hesitate to vote for Trump in November.
__________________
Quote:
200 bullets at a time......
http://img.villagephotos.com/p/2003-5/198981/life01.jpg

Subscribe to my YouTube channel ---->http://www.youtube.com/user/2A4USA
Reply With Quote
  #12  
Old 03-31-2020, 6:56 PM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Calguns Addict
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 5,493
iTrader: 0 / 0%
Default

Just reading the Reason.com snippet, you don't mean Dianne Feinstein could have been sorta/kinda correct about something? Say it ain't so...

December 2018 - Feinstein Statement on Regulation to Ban Bump Stocks

Quote:
...Congress must pass legislation to ensure a ban on bump stocks and other similar devices is protected from legal challenges...
March 2018 - Feinstein Statement on Regulation to Ban Bump Stocks

Quote:
...“Unbelievably, the regulation hinges on a dubious analysis claiming that bumping the trigger is not the same as pulling it. The gun lobby and manufacturers will have a field day with this reasoning. What’s more, the regulation does not ban all devices that accelerate a semi-automatic weapons rate of fire to that of a machine gun.

“Both Justice Department and ATF lawyers know that legislation is the only way to ban bump stocks. The law has not changed since 1986, and it must be amended to cover bump stocks and other dangerous devices like trigger cranks. Our bill does this—the regulation does not.”
Reply With Quote
  #13  
Old 04-01-2020, 12:06 AM
BryMan92 BryMan92 is offline
Member
 
Join Date: Mar 2018
Posts: 360
iTrader: 2 / 100%
Default

The footnotes are great: going after the BATFE’s missing Oxford comma, a sarcastic Wiki search, and a Futerama reference!
Reply With Quote
  #14  
Old 04-01-2020, 4:01 AM
pdsmith505 pdsmith505 is offline
Member
 
Join Date: Aug 2012
Posts: 188
iTrader: 0 / 0%
Default

Quote:
Originally Posted by BryMan92 View Post
The footnotes are great: going after the BATFE’s missing Oxford comma, a sarcastic Wiki search, and a Futerama reference!
I completely missed the Futurama reference... thanks for pointing that out!
Reply With Quote
  #15  
Old 04-01-2020, 10:56 AM
bohoki's Avatar
bohoki bohoki is offline
I need a LIFE!!
 
Join Date: Jan 2006
Location: 95401
Posts: 20,654
iTrader: 21 / 100%
Default

wow this judge is great the fed's lawyers are going to have to do some more work since all previous references are now invalid
Reply With Quote
  #16  
Old 04-01-2020, 11:03 AM
ShaneB ShaneB is offline
Senior Member
 
Join Date: Oct 2016
Location: Kingman AZ
Posts: 523
iTrader: 7 / 100%
Default

While I appreciate the efforts, I think we have much bigger fish to fry as far as gun rights are concerned.
Reply With Quote
  #17  
Old 04-01-2020, 1:56 PM
The War Wagon's Avatar
The War Wagon The War Wagon is offline
I need a LIFE!!
 
Join Date: Apr 2011
Location: da' 'BURGH
Posts: 10,294
iTrader: 29 / 100%
Red face

Sooooo... when are they going back on sale?
__________________
Reply With Quote
  #18  
Old 04-01-2020, 3:02 PM
OleCuss OleCuss is offline
Calguns Addict
 
Join Date: Jun 2009
Location: Kalifornia
Posts: 6,441
iTrader: 0 / 0%
Default

OK, IANAL and I've never even visited a law school. I'll still inflict a few thoughts on people - and will appreciate any corrections.

First, it was a fun read. Just dripping with sarcasm and disdain for the government's argument.

I'd note that this judgment is not about whether bump stocks must be legal, it is about the federal government taking personal property without compensation.

I'm curious about dismissing the motion without prejudice. I think the judge is saving pain and costs by effectively welcoming the government to re-enter the motion but to do it with reasonable grounds for doing so. I wonder if dismissal with prejudice might mean an appeal and a bunch of folderol which this avoids. Frankly, after such a scathing judgment I doubt the Feds are going to try a re-do of the motion invoking their non-existent police powers. So I suspect he killed the motion more effectively by dismissing without prejudice. But I don't know the relevant procedures so I could be very wrong.
__________________
CGN's token life-long teetotaling vegetarian. Don't consider anything I post as advice or as anything more than opinion (if even that).
Reply With Quote
  #19  
Old 04-01-2020, 6:43 PM
command_liner command_liner is offline
Senior Member
 
Join Date: May 2009
Location: Heart of the Valley, Oregon
Posts: 1,086
iTrader: 0 / 0%
Default

Quote:
Originally Posted by TruOil View Post
...
The Government argued it had the police power to regulate these devices in the public interest and without paying compensation--but the judge found that the constitution does not give the Feds police powers. The "second bite" was to allow the Feds to find some other basis in the Constitution that allowed the Feds to "take" without compensation. He hinted, however, that if the feds assert commerce clause power, the feds were going to be buying a lot of bump stocks.
Can we please get on to the Commerce Clause discussion and litigation?

Pretty please? It has been argued that the CC applies to wheat, and that has been a problem for decades. Recently we found that the CC does not apply to raisins... at least in the same way it applies to wheat.

Since the 2nd was added to the Constitution after the Commerce Clause, it will be fascinating to see read the arguments telling us how the superseding law that is the 2nd does not apply. Read what Roberts wrote in the 2013 Obamacare ruling and the more recent emanations about limits to the penumbras of the CC.

No way, no how do the emanations nor the penumbras of the CC reach forward through time, through the 2nd to today. This is the real game that is afoot: the rest of it is a sideshow. There is zero chance that big government wants to argue this point: it is a logically impossible loser.

Read carefully the testimony in the Congressional Record on NFA '34. The NFA scheme is a tax on commerce: otherwise it is prohibited by the 2nd. It is right there in the Congressional Record. Read Roberts in the 2013 ruling: there must be voluntary commerce in order for there to be a tax.

Is there today voluntary commerce in the items that require a NFA tax? It seems there was a blocker put in place in 1986. If there is no commerce, there cannot be a tax, so the NFA '34 is, at best, tenuous.

This is exactly why FeinWhine demanded that the Congress pass and the President sign law. Legislation separate and overlapping with NFA would
still be in place the day the NFA is struck down. She is evil, but not stupid.
__________________
What about the 19th? Can the Commerce Clause be used to make it illegal for voting women to buy shoes from another state?
Reply With Quote
  #20  
Old 04-02-2020, 7:35 AM
SimpleCountryActuary's Avatar
SimpleCountryActuary SimpleCountryActuary is offline
Not a miracle worker
CGN Contributor - Lifetime
 
Join Date: Dec 2008
Posts: 2,953
iTrader: 9 / 100%
Default

Quote:
Originally Posted by OleCuss View Post
non-existent police powers.
The key phrase.
__________________
"The most hated initials in America today ... TSA."

Said by yours truly to an audience of nodding IRS employees.
Reply With Quote
  #21  
Old 04-02-2020, 8:46 AM
rplaw's Avatar
rplaw rplaw is online now
Senior Member
 
Join Date: Dec 2014
Posts: 1,706
iTrader: 0 / 0%
Default

It's a pretty good smackdown but somewhere in the middle I started wondering about the general welfare clause in Art 1, Sec 8. Though of course if the welfare clause were applicable, that would mean that the Gov would have to compensate for the taking that they are trying to get around.
__________________
Some random thoughts:

Somebody's gotta be the mole so it might as well be me. Seems to be working so far.

Evil doesn't only come in black.

Life is like a discount bakery. Usually everything is just what you ordered. But, occasionally you come face to face with an unexpected fruitcake. Surprise!

My Utubery
Reply With Quote
  #22  
Old 04-02-2020, 1:53 PM
TruOil TruOil is offline
Senior Member
 
Join Date: Jul 2017
Posts: 1,847
iTrader: 0 / 0%
Default

Quote:
Originally Posted by rplaw View Post
It's a pretty good smackdown but somewhere in the middle I started wondering about the general welfare clause in Art 1, Sec 8. Though of course if the welfare clause were applicable, that would mean that the Gov would have to compensate for the taking that they are trying to get around.
I think you hit the nail on the head--the central issue in this case is the government's attempt to avoid paying millions of dollars out in compensation, first and foremost. The second major issue is whether the regulation was properly promulgated, and that too will be an interesting question. The judge understands that current legislation allows the government to regulate "machine guns," and he wants to be able to determine if a bump stock equipped semiauto rifle is a "machine gun" within the meaning of the law--or it too goes away.
Reply With Quote
  #23  
Old 04-05-2020, 9:10 AM
Wheellock's Avatar
Wheellock Wheellock is offline
Senior Member
 
Join Date: Dec 2019
Location: In the desert
Posts: 1,112
iTrader: 4 / 100%
Default

Strictly speaking as a tax payer, it seems we should have compensated people for confiscated property, for no other reason then to avoid these court costs. We will probably pay out in the end anyway. Why?
Reply With Quote
  #24  
Old 04-11-2020, 7:27 AM
Transient Transient is offline
Senior Member
 
Join Date: Jan 2020
Location: Currently in Virginia. Moving to San Diego summer 2020.
Posts: 793
iTrader: 0 / 0%
Default

Quote:
Originally Posted by ShaneB View Post
While I appreciate the efforts, I think we have much bigger fish to fry as far as gun rights are concerned.
I disagree simply because if they can get away with this then they'll try to expand the unlawful taking in another way. Maybe next time it'll be the firearm itself.

Sent from my SM-N960U using Tapatalk
Reply With Quote
  #25  
Old 04-11-2020, 9:14 PM
ja308 ja308 is offline
I need a LIFE!!
 
Join Date: Nov 2009
Posts: 12,660
iTrader: 0 / 0%
Default

Wow this is great ! We threw the democrats and media sycophants who worship at the alter of gun restrictions a useless item after Las Vegas.

Now a court who has men who know what they are about, takes the bone away !

Not tired of winning and Im trying to see how much I can contribute, to win back the house, keep the senate and of course re-elect the best President in my lifetime !

Lets keep promoting the NRA and other gun rights groups too !
Reply With Quote
Reply

Thread Tools
Display Modes

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

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

Forum Jump



All times are GMT -8. The time now is 6:52 AM.




Powered by vBulletin® Version 3.8.11
Copyright ©2000 - 2024, vBulletin Solutions Inc.
Proudly hosted by GeoVario the Premier 2A host.
Calguns.net, the 'Calguns' name and all associated variants and logos are ® Trademark and © Copyright 2002-2021, Calguns.net an Incorporated Company All Rights Reserved.
All opinions, statements and remarks made by Calguns.net on this web site and elsewhere are solely attributable to Calguns.net.



Seams2SewBySusy