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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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  #1801  
Old 12-05-2019, 5:34 PM
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Originally Posted by jaymz View Post
Am I wrong?
Yes.
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  #1802  
Old 12-05-2019, 10:23 PM
pratchett pratchett is offline
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Originally Posted by MajorCaliber View Post
There is at least an argument to be made (although and incorrect one, I believe) that 2A does not apply to an individual right...
That argument makes sense... if you ignore all of colonial American law, policies, rules, practices, procedures, and regulations from 1584 - 1787; a strict linguistic analysis of the text; an analysis of the internal consistency of the Bill of Rights; everything the Founding Fathers wrote or said about it; existing federal law on the definition of a militia; logic; and historical practice. Then, yeah, it’s a great case.
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  #1803  
Old 12-06-2019, 9:12 AM
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Worth a save and then some...

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Originally Posted by pratchett View Post
That argument makes sense... if you ignore all of colonial American law, policies, rules, practices, procedures, and regulations from 1584 - 1787; a strict linguistic analysis of the text; an analysis of the internal consistency of the Bill of Rights; everything the Founding Fathers wrote or said about it; existing federal law on the definition of a militia; logic; and historical practice. Then, yeah, it’s a great case.
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  #1804  
Old 12-06-2019, 2:29 PM
TruOil TruOil is offline
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Originally Posted by pratchett View Post
That argument makes sense... if you ignore all of colonial American law, policies, rules, practices, procedures, and regulations from 1584 - 1787; a strict linguistic analysis of the text; an analysis of the internal consistency of the Bill of Rights; everything the Founding Fathers wrote or said about it; existing federal law on the definition of a militia; logic; and historical practice. Then, yeah, it’s a great case.
The argument has its genesis in United States v. Miller, and is the only Supreme Court authority ever offered for that proposition. Then look at Heller, where all nine agreed that it was an individual right (which should put the collective right nonsense to bed), but the dissenters held that it was an individual right to bear arms only while serving in a militia. (Which makes sense, in a way, unless we are talking about crew served weapons (tee hee)--can't have soldiers sharing weapons or anything.) I haven't actually read the dissent in over a decade, so maybe I am shading their argument. Perhaps.
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  #1805  
Old 12-06-2019, 4:34 PM
natman natman is offline
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Originally Posted by MajorCaliber View Post
This brief touches on a point I have been making for a while:

There is at least an argument to be made (although and incorrect one, I believe) that 2A does not apply to an individual right, just the right of a state to form and arm a militia. There is also an (incorrect) argument to be made that 2A does not apply to modern military style weapons.
Not really. The "collective right" argument had many followers, but it's a classic case of formulating your logic to achieve a desired result. It requires that the phrase "the right of the people" mean one thing in the First Amendment, mean something 180 degrees different in the Second Amendment, then back to the meaning used in the First Amendment for the Fourth Amendment and everywhere else "the People" are referred to in the Bill of Rights. It's ridiculous to state that the Bill of Rights, a collection of limitations on the government to insure individual rights, has made an exception for the Second Amendment and ONLY the Second Amendment.

The Heller decision laid both of these arguments to rest.

Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
page 1 [emphsis added]

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, ... and the Fourth Amendment applies to modern forms of search, ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
page 8

Last edited by natman; 12-06-2019 at 4:37 PM..
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  #1806  
Old 12-07-2019, 8:58 AM
MajorCaliber MajorCaliber is offline
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Natman:

I agree completely with that. Both of those anti-2A arguments are wrong.
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  #1807  
Old 12-07-2019, 10:04 AM
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Originally Posted by natman View Post
Not really. The "collective right" argument had many followers, but it's a classic case of formulating your logic to achieve a desired result. It requires that the phrase "the right of the people" mean one thing in the First Amendment, mean something 180 degrees different in the Second Amendment, then back to the meaning used in the First Amendment for the Fourth Amendment and everywhere else "the People" are referred to in the Bill of Rights. It's ridiculous to state that the Bill of Rights, a collection of limitations on the government to insure individual rights, has made an exception for the Second Amendment and ONLY the Second Amendment.

The Heller decision laid both of these arguments to rest.

Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
page 1 [emphsis added]

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, ... and the Fourth Amendment applies to modern forms of search, ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
page 8
There are judges on the Supreme Court, right now, who would argue against both those points. Four of them. God bless Trump not six of them.

So the argument to be made point is valid. They can make an argument.
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  #1808  
Old 12-08-2019, 4:25 AM
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Originally Posted by Offwidth View Post
There are judges on the Supreme Court, right now, who would argue against both those points. Four of them. God bless Trump not six of them.

So the argument to be made point is valid. They can make an argument.
Maybe on the first point but on the second point (only weapons at the time of the founding are protected) ALL the libs signed on to Caetano, which rejected this.
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  #1809  
Old 12-08-2019, 7:52 AM
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The phrase "the people" or "person" is used in the Bill of Rights six times. According to the antis, five of those times it means what is says, "the people," meaning everyone subject to the jurisdiction of the Constitution. But according to the antis, in the Second Amendment, it means, "a militia."

If you look at the rest of the Amendments, those phrases are used a total of 20+ times. AGAIN, each time it means everyone subject to the jurisdiction of the Constitution.

Claiming that the phrases have a different meaning in the Second Amendment is simply wrong. A read of documents from the era in which the Constitution was written, supports this viewpoint, but NOT one that says that the Second Amendment is about a militia.
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  #1810  
Old 12-10-2019, 6:50 PM
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This case is being considered for an upcoming oral argument calendar in Pasadena. Please review the Pasadena sitting dates for April 2020 and the 2 subsequent sitting months in that location...You will receive notice that your case has been assigned to a calendar approximately 10 weeks before the scheduled oral argument date.

https://www.courtlistener.com/docket...avier-becerra/
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  #1811  
Old 12-10-2019, 8:38 PM
Maverick237 Maverick237 is offline
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I wonder if I can attend this. First time a case like this is being heard in a reasonable driving distance from me.
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  #1812  
Old 12-11-2019, 10:23 AM
dave_linnehan dave_linnehan is offline
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The Miller decision DID NOT rule that the Second Amendment established a “collective right”. That is a lie maintained by lower courts for seventy years and not addressed by the Supreme Court until Heller. The Miller Decision was remanded only to consider which arms are protected. The government’s argument that Miller needed Militia membershp was ignored.
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  #1813  
Old 12-11-2019, 2:14 PM
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Originally Posted by dave_linnehan View Post
The Miller decision DID NOT rule that the Second Amendment established a “collective right”. That is a lie maintained by lower courts for seventy years and not addressed by the Supreme Court until Heller. The Miller Decision was remanded only to consider which arms are protected. The government’s argument that Miller needed Militia membershp was ignored.
The language on which courts and scholars relied upon for the "collective rights" theory came from the court's holding/dicta that only arms useful for militia purposes were protected by the Second Amendment, and therefore it was legitimate to subject a short barreled shotgun (which the court assumed would not be a militia weapon) to regulation/registration and taxation was constitutional. Everything after that was based on inferences from that basic (and questionable) statement by the court.
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  #1814  
Old 12-11-2019, 3:20 PM
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Originally Posted by TruOil View Post
The language on which courts and scholars relied upon for the "collective rights" theory came from the court's holding/dicta that only arms useful for militia purposes were protected by the Second Amendment, and therefore it was legitimate to subject a short barreled shotgun (which the court assumed would not be a militia weapon) to regulation/registration and taxation was constitutional. Everything after that was based on inferences from that basic (and questionable) statement by the court.
Everything after that was based on inferences, spin and wishful thinking from that basic (and questionable) statement by the court.
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  #1815  
Old 12-11-2019, 3:39 PM
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Quote:
Originally Posted by TruOil View Post
The language on which courts and scholars relied upon for the "collective rights" theory came from the court's holding/dicta that only arms useful for militia purposes were protected by the Second Amendment, and therefore it was legitimate to subject a short barreled shotgun (which the court assumed would not be a militia weapon) to regulation/registration and taxation was constitutional. Everything after that was based on inferences from that basic (and questionable) statement by the court.
SCOTUS rejected a collective or militia based right, and confirmed an individual right to keep and bear arms, in Presser v Illinois, 1886. A hundred years ago. The idea that Heller was some departure is a lie.

Dont get bogged down in the discussion of incorporation. At the time, the bill of rights had not yet been held to apply to state governments. The bill of rights is now fully incorporated.
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  #1816  
Old 12-11-2019, 3:53 PM
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Originally Posted by Citadelgrad87 View Post
SCOTUS rejected a collective or militia based right, and confirmed an individual right to keep and bear arms, in Presser v Illinois, 1886. A hundred years ago. The idea that Heller was some departure is a lie.

Dont get bogged down in the discussion of incorporation. At the time, the bill of rights had not yet been held to apply to state governments. The bill of rights is now fully incorporated.
Not quite. There is no incorporation of the Fifth Amendment's right to an indictment in felony cases. A whole lot of California District Attorneys are still filing felony informations.
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