Updated CA PC 26202(a)(3) and dismissal Re: CCW renewal

[BAJ475]

That's the way that I read it......

Not to disagree with you, but how does the state lawfully deny a person a federal constitution right on January 1 of 2024 (the effective date of SB2) based on an event that occurred 4+ years earlier, without violating the federal constitution's due process clause and the Second Amendment?

[RickD427]

Not to disagree with you, but how does the state lawfully deny a person a federal constitution right on January 1 of 2024 (the effective date of SB2) based on an event that occurred 4+ years earlier, without violating the federal constitution's due process clause and the Second Amendment?

Outstanding questions. I'm not a lawyer. I'm just one who spent a lot of my career trying to figure out, and then carry out, the decisions made by the legal system. In other words, I don't get to steer the ship, I just keep the engines running, but when the thing runs aground, guess who gets yelled at.

As to SB2 imposing a retroactive sanction, that whole point is very similar to the Lautenberg Amendment which imposed a federal firearms prohibition on folks who had a domestic violence conviction prior to its enactment. The Constitution clearly prohibits "ex post facto" laws in Article I. An "ex post facto" law is generally considered as one that imposes a punishment for conduct that preceded the statute. The whole legal problem can be solved if you remove the concept of "punishment" from the equation. If the loss of firearms rights is equated to a "status" rather than a "punishment" then all is well, at least from a constitutional standpoint. In essence, that's how the courts have responded to Lautenberg challenges.

The second point is that laws are presumed to be constitutional until they're not. That point goes all of the way back to Marbury v Madison. That case imposed upon a plaintiff the burden to show that a law is unconstitutional. So the short answer to the question "How can this law be constitutional" is "because no plaintiff has carried their burden of showing that it is unconstitutional."

I gotta quote the wisdom of Samuel Clemens (Mark Twain). He observed that the United States had the worst legal system in the world, except for all of the others.

[MountainLion]

Not to disagree with you, but how does the state lawfully deny a person a federal constitution right ...

The question you asked above is a specific version of a much more generic question: How does the state deny constitutional rights? It turns out, it does that all the time, and doing so is perfectly legal, constitutional, and in many cases broad accepted. All constitutional rights find limitations, usually where they impact other rights. While the 1A gives a certain right to free speech, there are things that one can not say legally. For example, 3 career criminals carefully planning their next bank heist is both free speech (they are saying things to each other), and a crime for which they can go to jail, namely conspiracy (see PC 182). In the 2A world, the right is also limited. For example both Heller and Bruen confirmed the long-standing prohibition of felons and mentally ill. Various other laws (such as Lautenberg and and California laws) have extended that to DV perpetrators and certain misdemeanors. People who are currently under arrest or in jail can't have guns (duh), yet they are "people" in the sense of the BoR, and have many other rights. Most temporary restraining orders in this state prohibit possessing guns, and therefore can also not have a CCW while the RO is active. All SB2 does is to extend this set slightly, to removing CCWs for an additional 5 years after an RO.

Given that all the other restrictions on gun possession and CCW are presumptively constitutional, it seems far-fetched to argue that this part of SB2 is not.

Now, having said that, I agree with what many other posters wrote above: restraining orders are issued hastily, sometimes too much so. That is intentional, and mostly a good thing because the presumption is that someone is dangerous and needs to be stopped quickly, and due process is taken care of later. But this process can be abused, and a certain fraction of TROs are simply invalid. Those nearly always get fixed (on the hearing that happens nominally 30 days after, often delayed to 2-3 months). But in the meantime, the person can not have any guns for those 2-3 months, they have to spend a lot of money on attorneys to get the TRO lifted, and now with SB2 they are unlikely to get a CCW for 5 years.

[BAJ475]

Outstanding questions. I'm not a lawyer. I'm just one who spent a lot of my career trying to figure out, and then carry out, the decisions made by the legal system. In other words, I don't get to steer the ship, I just keep the engines running, but when the thing runs aground, guess who gets yelled at.

As to SB2 imposing a retroactive sanction, that whole point is very similar to the Lautenberg Amendment which imposed a federal firearms prohibition on folks who had a domestic violence conviction prior to its enactment. The Constitution clearly prohibits "ex post facto" laws in Article I. An "ex post facto" law is generally considered as one that imposes a punishment for conduct that preceded the statute. The whole legal problem can be solved if you remove the concept of "punishment" from the equation. If the loss of firearms rights is equated to a "status" rather than a "punishment" then all is well, at least from a constitutional standpoint. In essence, that's how the courts have responded to Lautenberg challenges.

The second point is that laws are presumed to be constitutional until they're not. That point goes all of the way back to Marbury v Madison. That case imposed upon a plaintiff the burden to show that a law is unconstitutional. So the short answer to the question "How can this law be constitutional" is "because no plaintiff has carried their burden of showing that it is unconstitutional."

Not yet! OP has my phone number, and this could come before Judge Benitez.

While you may not have passed the bar exam, your legal analysis ability exceeds some I know who have.

I gotta quote the wisdom of Samuel Clemens (Mark Twain). He observed that the United States had the worst legal system in the world, except for all of the others.

[Helmut]

Updated.

[Rickybillegas]

Updated.

?....

[Librarian]

?....

In the first post - denial overturned, CCW issued.

[hiyabrad]

Does anyone know of good representation for a CCW denial that IMHO does not have legal grounds (not TRO related)? I am located in Los Angeles and the denial was from the LAPD. I already contacted Chuck Michel's office twice over a 6 week period but no one called back. Thanks!

[Rickybillegas]

Do you have any idea or notion for the denial?
Lots of things (not necessarily fair), like speeding tickets, misdemeanors, can give them an excuse to deny.
Have you petitioned LAPD for an explanation?

[BAJ475]

Do you have any idea or notion for the denial?
Lots of things (not necessarily fair), like speeding tickets, misdemeanors, can give them an excuse to deny.
Have you petitioned LAPD for an explanation?

Those are all good questions. I sent him a PM. Hopefully, he gives me a call.