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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 10-12-2009, 8:59 AM
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Default Legal flaws in AB962 allowing ready Fed. court challenge...

I copied & reposted Gene's post that was buried in a thread so folks are not panicky. We have time, funds and technical correctness on our side. We've known about this issue for sometime (i.e, we didn't come up with this at midnight yesterday) - it's been kept warm on the stove 'just in case'.

The regulation of internet delivery of ammunition as drafted in AB962 is preeempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAAA '94).

AB962 Regulates The Routes & Services of Common Carriers

AB962 creates a misdemeanor in proposed Penal Code 12318 for not following the appropriate steps for “delivery . . . of handgun ammunition”. The bill goes on to state that deliveries may “only occur in a face-to-face transaction with the deliverer . . . being provided bona fide evidence of identity from the purchaser or other transferee.” However, the bill exempts law enforcement agencies, sworn police officers, ammunition manufacturet/importers, “handgun ammunition vendors” as defined in the statute, and certain firearms collectors. As such, common carriers will now have to make modifications to their rates and services in an attempt to ascertain whether delivering a package marked ORM-D to any given address is allowed, or is punishable as a crime.

This requirement on a common carrier’s service is particularly difficult for carriers where a retail establishment meets the definition of a “handgun ammunition vendor” under the act, but is not otherwise a Federal Firearms Licensee. These retailers are exempted from the non-delivery requirement but there is no documentation proving that such a recipient is exempt. Many “big box” retailers in California sell ammunition but do not sell firearms.

Even if an alternate narrower statutory construction were to be followed, on the face of the proposed law, common carriers would have to attempt to obtain evidence of identity to comply with proposed Penal Code 12318(a), which is clearly a state law that has a substantial impact on a carrier’s service.

Regulation of the Routes or Services of Common Carriers is Federally Preempted

Federal preemption of the routes, rates, or services of common motor carriers is found in 49 USC 14501(c)(1):

Quote:
(1) General rule. Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713 (b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.
Additional Federal preemption for common carriers was enacted in FAAAA '94 and was codified in 49 USC 41713:

Quote:
41713. Preemption of authority over prices, routes, and service

(a) Definition. In this section, “State” means a State, the District of Columbia, and a territory or possession of the United States.

(b) Preemption.
(1) Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.

(4) Transportation by air carrier or carrier affiliated with a direct air carrier.—
(A) General rule.— Except as provided in subparagraph (B), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier or carrier affiliated with a direct air carrier through common controlling ownership when such carrier is transporting property by aircraft or by motor vehicle (whether or not such property has had or will have a prior or subsequent air movement).

The US Supreme Court has unanimously ruled that laws which regulate delivery by "common carriers" are preempted
.


In 2008, the Supreme Court ruled 9-0 that a Maine statute that placed limitations on the delivery of cigarettes was preempted by the FAAAA. That statute is very similar to the restrictions on delivery found in AB962 .

In Rowe v. New Hampshire Motor Transport Association (128 S. Ct. 989, 2008) the Court found that a requirement for shippers to choose a special shipment method and that a carrier would be deemed to have knowledge that shipment had prohibited tobacco products in it, were both preempted by Federal Law. Maine attempted to defend the regulation by claiming that there was a public health exception to the FAAAA. The court replied to that argument as follows:

Quote:
Maine’s inability to find significant support for some kind of “public health” exception is not surprising. “Public health” does not define itself. Many products create “public health” risks of differing kind and degree. To accept Maine’s justification in respect to a rule regulating services would legitimate rules regulating routes or rates for similar public health reasons. And to allow Maine directly to regulate carrier services would permit other States to do the same. Given the number of States through which carriers travel, the number of products, the variety of potential adverse public health effects, the many different kinds of regulatory rules potentially available, and the difficulty of finding a legal criterion for separating permissible from impermissible public-health-oriented regulations, Congress is unlikely to have intended an implicit general “public health” exception broad enough to cover even the shipments at issue here.
(Id. at 997.)

There is not any equivalent “public safety” exception to the FAAAA to allow AB962 either.

AB962, as written, is preempted by FAAAA '94.

We have already done initial planning regarding plaintiffs and counsel for this case. And we do have time - as the law does not take effect until February 2011.
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Last edited by bwiese; 10-12-2009 at 9:02 AM..
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Old 10-12-2009, 9:02 AM
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Getcha some!
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Old 10-12-2009, 9:14 AM
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So because this new regulation makes UPS's job harder, it is not legal ? That is SWEEEEEEET!
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Old 10-12-2009, 9:16 AM
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Very nicely played, CGF. Donation inbound to help offset some of the costs. I knew there would be a good contingency plan, but I didn't know it would be this tight. Well done.
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Old 10-12-2009, 9:18 AM
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How do other areas legally prevent mail order ammunition sales or justify the finger print requirement?
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Old 10-12-2009, 9:18 AM
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My question is buried in the other thread too.

Can we get legal fees paid by the state if we win the case?
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Old 10-12-2009, 9:19 AM
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Defense in depth. We didn't want to have to pay to take it down in court, but the ball got past the front line. More costly, but that's why we have a second line.

7x57
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Old 10-12-2009, 9:23 AM
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How do other areas legally prevent mail order ammunition sales or justify the finger print requirement?
Could be preempted by being passed before the date of the federal law. That's my guess. Most laws will have a history annotation on the bottom of effective date or date it was made into law.
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Old 10-12-2009, 9:23 AM
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I'll take it however we get there!!!
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Old 10-12-2009, 9:24 AM
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Thanks Bill, that other thread grew a lot faster than I expected!
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Old 10-12-2009, 9:26 AM
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Thanks for the hope! More donstions inbound soon.
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Old 10-12-2009, 9:28 AM
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Would there have been some risk exposing this prior to the bill becoming law? I don't understand why no mention of this was made during the fight.

Last edited by dirtnap; 10-12-2009 at 10:07 AM..
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Old 10-12-2009, 9:28 AM
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Old 10-12-2009, 9:31 AM
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Even though it looks like AB962 will be shot down, be prepared to be gouged for the next year.
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Old 10-12-2009, 9:32 AM
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Quote:
Originally Posted by dirtnap View Post
Would there have been some risk exposing this prior to the bill becoming law? I don't understand why no mention of this was made during the fight.

I agree. Would it have made any difference? I can't think of why it would have helped the opposition. Would they have worded AB962 differently?

Maybe there was concern that CG folks wouldn;'t work quite as hard to get Arie to veto if the alternative plan was divulged.

I still don't believe that there was ever a tally of all the calls and faxes and e-mails we made. And if there was, if Arnie ever saw it.
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Old 10-12-2009, 9:32 AM
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Quote:
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Would there have been some risk exposing this prior to the bill becoming law? I don't understand why no mention of this was made during the fight.
I'm sure there would have been a risk, why would you let them know they wrote a bill that could easily be overturned in court.
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Old 10-12-2009, 9:48 AM
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It seems like the legislature could easily get around this by passing a new law that makes buying handgun ammo illegal except in face-to-face transactions. That would relieve the burden on common carriers and take them out of the equation. For example, among other things, PC 12020 makes it a crime to buy a high capacity magazine.
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Old 10-12-2009, 9:51 AM
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Good luck.
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Old 10-12-2009, 10:00 AM
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Quote:
Originally Posted by Vin496 View Post
I'm sure there would have been a risk, why would you let them know they wrote a bill that could easily be overturned in court.

Quote:
Originally Posted by bodger View Post
Maybe there was concern that CG folks wouldn''t work donate quite as hard to get Arie to veto if the alternative plan was divulged.
Maybe this?


Last edited by dirtnap; 10-12-2009 at 10:04 AM..
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Old 10-12-2009, 10:05 AM
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I agree. Would it have made any difference? I can't think of why it would have helped the opposition. Would they have worded AB962 differently?

Maybe there was concern that CG folks wouldn;'t work quite as hard to get Arie to veto if the alternative plan was divulged.

I still don't believe that there was ever a tally of all the calls and faxes and e-mails we made. And if there was, if Arnie ever saw it.
Of course it would. AB 962 was already amended to squeeze by the initial objections of Calgunners when we were hammering the Assembly and Senate.

Sometimes you have a better chance when you dare the opposition to lick the frozen flag pole....
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Old 10-12-2009, 10:05 AM
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Just Curious, but how come this was not originally part of the strategic effort to stop this bill?

Don't you think it would have helped to use these legal loopholes as another way to explain the ridiculousness of this bill? Especially to those that don't quite get it?
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Old 10-12-2009, 10:10 AM
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Quote:
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Would there have been some risk exposing this prior to the bill becoming law? I don't understand why no mention of this was made during the fight.
I don't have a copy of the book handy, but there is a passage in Sun Tzu's The Art of War that talks about when you want your men to fight their hardest, place their backs against a river so they have nowhere to go but forward. I'm quite certain that same wisdom ran through Gene's veins when making this decision.
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Old 10-12-2009, 10:22 AM
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I have to agree with the sentiment that you don't show all of your cards in a game until forced to. I would like to think of it as an "incremental" approach to breaking the back of gun control. Besides a court decision is the final word on any piece of legislation anyways.

Greg
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Old 10-12-2009, 10:23 AM
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Quote:
Originally Posted by Eckolaker View Post
Just Curious, but how come this was not originally part of the strategic effort to stop this bill?

Don't you think it would have helped to use these legal loopholes as another way to explain the ridiculousness of this bill? Especially to those that don't quite get it?
TRP probably didn't think it was necessary to publicize this in fear of A) gun owners becoming complacent that "it will be taken care of" and B) the legislature changing the wording to regulate the buying instead of delivering to comply with the federal regulation.

If/when AB962 gets struck for this violation, the legislature will have to start from the beginning to get a legal bill passed. This means it will start at the basics, change the words, get it passed in committee, bring it to the floor for debate/vote, then over to the other side for debate/vote, change here, there, etc. The longer a bill takes the less enthusiastic lawmakers are willing to spend on it. We can bank on more important things to come by to get their attention off draft #2. Jab in the face to make them take cover then knee them in the balls. That's how politics work.
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Old 10-12-2009, 10:27 AM
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We cannot live in a state of complacency, as if CGF/NRA/SAF will be there to save us every time.

We must take it upon ourselves to fight using all the resources available to us, which is what we did. And we'll continue to. And we're going to win. End of story.
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Old 10-12-2009, 10:32 AM
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I wouldn't count the NRA as being beneficial to CA. I've been around here for a year and in that time the CGF has done more on accident than the NRA has done on purpose. The NRA seems like a fair weather fan of CA. I wouldn't put them on my Christmas card list.
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Old 10-12-2009, 10:35 AM
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We cannot live in a state of complacency, as if CGF/NRA/SAF will be there to save us every time.

We must take it upon ourselves to fight using all the resources available to us, which is what we did. And we'll continue to. And we're going to win. End of story.
Succinctly put.
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Old 10-12-2009, 10:35 AM
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Quote:
Originally Posted by GrizzlyGuy View Post
It seems like the legislature could easily get around this by passing a new law that makes buying handgun ammo illegal except in face-to-face transactions. That would relieve the burden on common carriers and take them out of the equation. For example, among other things, PC 12020 makes it a crime to buy a high capacity magazine.
That could just as easily violate the Constitution on 2nd Amendment grounds as ammunition is required for "functional" firearms. Just ask Justice Scalia.
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Old 10-12-2009, 10:38 AM
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Quote:
Originally Posted by woodsman View Post
How do other areas legally prevent mail order ammunition sales or justify the finger print requirement?
That's at the Local level.... the Supreme Court stated that a State cannot pass the law. That's how I understand it.

Last edited by stillnotbob; 10-12-2009 at 10:41 AM..
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Old 10-12-2009, 10:43 AM
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That can't be it, the law states "a political subdivision of a state". That means any governing body with jurisdiction in the state, ie county, city, village, township, et al.
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Old 10-12-2009, 10:44 AM
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CGF has my support.

I'll gladly miss lunch & dinner today if CGF will use the money to a better cause.
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Old 10-12-2009, 10:50 AM
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why wasnt this used to challenge the restrictions already in place in places like SF?


Do you have to wait for the bill to take effect to file?
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Old 10-12-2009, 10:51 AM
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Quote:
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How do other areas legally prevent mail order ammunition sales or justify the finger print requirement?
This is exactly what I was wondering.... Why did we never go after counties like Marin when they imposed mail order prohibitions?
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Old 10-12-2009, 10:52 AM
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No, file right away. If we win, they can't enforce it and the law because null and void. Game on.

We should have an AB962 subforum somewhere that all the threads about the law can be put.
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Old 10-12-2009, 10:52 AM
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If my understanding is correct, this ONLY would challenge the mail-order ban part.. Right?

We'd still be screwed when buying ammo locally (like at the range)... Right?
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Old 10-12-2009, 10:53 AM
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Quote:
Originally Posted by dirtnap View Post
Would there have been some risk exposing this prior to the bill becoming law? I don't understand why no mention of this was made during the fight.
It was made to the relevant parties thru a very appropriate channel at the right time.

You don't wanna call out flaws in a law while it can still be amended.

I think, in final analysis, it got lost in noise and/or in Gov's staff with all the activity 700+ bills to sign/veto in the last day, someone just said "hey the gun guys got 2 outta 3 so be happy".

AB962 hung by a thread in legislature. NRA & CRPA folks were lied to by a specific legislator that the bill was dead. Normally this does NOT happen - folks from opposite sides who see & work w/each other every day don't lie to each other on such procedural matters at that level. Our team treats opposing legislators with respect - opposes them, but with decorum and following the rules, so we can maintain a high road and not be denigrated. That's fine, until someone pulls crap, makes false accusations (i.e., lies about an NRA position, stance or statement) - and that's when the gloves come off. I suspect that legislator will have interesting things happen to him, including orange card mailings and billboards touting NRA support for him placed near churches & schools. In a contested Dem primary that can (and has) mad a difference.
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Last edited by bwiese; 10-12-2009 at 11:04 AM..
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Old 10-12-2009, 10:55 AM
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I wouldn't count the NRA as being beneficial to CA. I've been around here for a year and in that time the CGF has done more on accident than the NRA has done on purpose. The NRA seems like a fair weather fan of CA. I wouldn't put them on my Christmas card list.
How little you know of what the NRA has done in Ca.
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"It's not always being fast or even accurate that counts, it's being willing. I found out early that most men, regardless of cause or need, aren't willing. They blink an eye or draw a breath before they pull the trigger--and I won't."

John Wayne as John Bernard (J. B.) Books in The Shootist
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  #38  
Old 10-12-2009, 10:56 AM
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jakemccoy jakemccoy is offline
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I wonder if Arnold knew about this problem FAAAA.
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  #39  
Old 10-12-2009, 11:00 AM
dirtnap dirtnap is offline
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Quote:
Originally Posted by bwiese View Post
It was made to the relevant parties thru a very appropriate channel.

I think, in final analysis, it got lost in noise and/or in Gov's staff with all the activity 700+ bills to sign/veto in the last day, someone just said "hey the gun guys got 2 outta 3 so be happy".

So the "relevant" parties turned out not to be so relevant....maybe next time the rest of us irrelevant people can get a little 411.

You can PM me if you feel that is more appropriate.
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  #40  
Old 10-12-2009, 11:06 AM
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Will the lawsuit only challenge PC 12318 as it relates to the delivery of ammo or will it also attack PC 12061 requiring thumbprint, etc.?
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