Jump to content

Today's message from 9th circuit to BHO


bob

Recommended Posts

That's cool. I know what you are saying, and agree that it's impossible for the 7th to incorporate without also overturning Chicago's ban.

 

My argument is that the Nordyke decision to uphold gun bans on public property is WAY out of line regarding a fundamental right.

I agree it is an issue that has to be addressed.

Link to comment
Share on other sites

We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

 

Yeah, I agree with you.

 

But we probably all also agree that given the above, the right is not much of a right if you can only exercise it within the confines of your home. Certainly not a right equivalent with other rights that are incipient to our concept of ordered liberty.

Link to comment
Share on other sites

which is why I don't understand how D.C. vs Miller was lost.

 

Are you referring to United States v. Miller, from 1939?

 

If so, Miller lost because he failed to prove that his sawed-off shotgun was within the class of weapons protected under the Second Amendment. "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." U.S. v. Miller, 307 U.S. 174 (1939)

 

The Court in Heller made a point to distance itself from certain language in Miller, though, and thus limited Miller's holding:

 

"Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment."

 

However, the bottom line is that Miller lost, ultimately, because he and his codefendant failed to show the weapon they possessed was of the kind within the purview of 2d Amendment protections.

 

We won't be loading machine guns into our carts at Wal-Mart anytime soon.

Link to comment
Share on other sites

There is an interesting review of the Miller case everyone should read.

 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=981831

 

It shows why you do not want to be trying to appeal a case of a gangster with no money.

 

which is why I don't understand how D.C. vs Miller was lost.

 

Are you referring to United States v. Miller, from 1939?

 

If so, Miller lost because he failed to prove that his sawed-off shotgun was within the class of weapons protected under the Second Amendment. "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." U.S. v. Miller, 307 U.S. 174 (1939)

 

The Court in Heller made a point to distance itself from certain language in Miller, though, and thus limited Miller's holding:

 

"Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment."

 

However, the bottom line is that Miller lost, ultimately, because he and his codefendant failed to show the weapon they possessed was of the kind within the purview of 2d Amendment protections.

 

We won't be loading machine guns into our carts at Wal-Mart anytime soon.

Link to comment
Share on other sites

There is an interesting review of the Miller case everyone should read.

 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=981831

 

It shows why you do not want to be trying to appeal a case of a gangster with no money.

 

For some reason I can't get that page to open on my PC.

 

I seem to recall from reading the opinion and related materials years (and years and years) ago that Mr. Miller failed to show up at his trial after remand from the U.S. S. Ct.

 

Is that true?

Link to comment
Share on other sites

My argument is that the Nordyke decision to uphold gun bans on public property is WAY out of line regarding a fundamental right.

I agree it is an issue that has to be addressed.

 

Just one additional comment.

 

Strickly speaking, Nordyke didn't involve an ordinance banning weapons on just any "public property." It banned weapons on county owned and operated properties. That's narrower and could be justified under the county's proprietary functions, as opposed to governmental powers. That is, the Court may hold that the county has the same powers as any private business owner to prohibit weapons on those properties it oversees, even though it would otherwise be powerless to impose a blanket prohibition on weapon possession on other "public properties."

 

Here's how one court explained the proprietary-function vs. governmental-power dicotomy in another context, but one involving claims under the Equal Protection Clause:

 

"In order to protect the rights and freedoms of private citizens from oppressive interference, the power of a state to govern is restricted by its own constitution and provisions of the federal constitution as well. When the state exercises its proprietary or business power, however, it is subject to no more limitation than a private individual or corporation would be in transacting the same business. While the line between governmental and proprietary function is none too sharply drawn and is subject to modification as concepts of government are changed to meet the demands of society, one principle remains fixed: the letting of public contracts, particularly those providing for internal needs of government, is a proprietary function."

Link to comment
Share on other sites

Peculiar_20Miller_20Story_1_.pdf

There is an interesting review of the Miller case everyone should read.

 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=981831

 

It shows why you do not want to be trying to appeal a case of a gangster with no money.

 

For some reason I can't get that page to open on my PC.

 

I seem to recall from reading the opinion and related materials years (and years and years) ago that Mr. Miller failed to show up at his trial after remand from the U.S. S. Ct.

 

Is that true?

I think so. his lawyer never went to the SCOTUS to argue pleading no funds, and miller was murdered shortly thereafter.

 

I can email you the file if you send me a PM with an email address.

 

<added> I think i have attached it

Link to comment
Share on other sites

Can someone explain to me whats going on ? this thread means nothing to me and makes no sense, please enlighten me why you all so happy.

The 9th circuit court of appeals decided that the 2A applies to the states as well as the federal government.

 

Eventually this will mean a lot in a state like Illinois where our 2A rights are severely infringed. It will mean less in states like Montana where the right is infringed on much less.

Link to comment
Share on other sites

People in California will start to challenge the stupid gun laws therein. This is the spark that has started the fire guys.

 

The folks at CalGuns wisely aren't talking about the plans in public ...

 

But the general message there is that in less than two weeks, all heck is going to break loose in California, litigation-wise.

 

Stimulus for lawyers.

Link to comment
Share on other sites

When they're our lawyers, that's OK with me. :thumbsup:

 

Regarding Miller, there's been a lot of speculation that the appeals up the chain in that case were a set-up. The case, in other words, was advanced and given chances by the losing sides early on because they saw it as a good vehicle to go to higher levels (maybe even the Supreme Court, I guess) and get a precedent they favored. It was known that Miller was a terrible defendant, and he actually disappeared long before the case was accepted by SCOTUS. That, too, was known to all involved. I wish I'd saved a copy of the article I read on this subject; it was fascinating.

Link to comment
Share on other sites

Regarding Miller.... It was known that Miller was a terrible defendant, and he actually disappeared long before the case was accepted by SCOTUS.

 

Sometimes my memory serves me better than others. In any case, I recall reading that Miller had passed on before his SCOTUS date and this is why his side was not represented before the court.

 

A quick edit:

 

This is not the article I recall reading and I have not read the entire thing... If details in the forward are accurate, Miller was indeed involved in some more than shady ventures.

 

RKBA Miller Article

Link to comment
Share on other sites

People in California will start to challenge the stupid gun laws therein. This is the spark that has started the fire guys.

 

The folks at CalGuns wisely aren't talking about the plans in public ...

 

But the general message there is that in less than two weeks, all heck is going to break loose in California, litigation-wise.

In context, the two weeks thing is something that came about as a bit of a joke from the chairman of the CGF.

 

His time frame always seemed to be two weeks for just about anything so now two weeks has come to mean sometime in the future in his posts.

 

My guess is the storm of litigation will be filed once the issue of an en banc hearing is decided.

Link to comment
Share on other sites

People in California will start to challenge the stupid gun laws therein. This is the spark that has started the fire guys.

 

The folks at CalGuns wisely aren't talking about the plans in public ...

 

But the general message there is that in less than two weeks, all heck is going to break loose in California, litigation-wise.

In context, the two weeks thing is something that came about as a bit of a joke from the chairman of the CGF.

 

His time frame always seemed to be two weeks for just about anything so now two weeks has come to mean sometime in the future in his posts.

 

My guess is the storm of litigation will be filed once the issue of an en banc hearing is decided.

 

 

Well ... here it is, less than two weeks from the ruling ... the first of what might be several cases challenging laws in the 9th circuit.

 

NEWS RELEASE

Second Amendment Foundation

12500 NE Tenth Place • Bellevue, WA 98005

(425) 454-7012 • FAX (425) 451-3959 • www.saf.org

 

SAF, CALGUNS FOUNDATION CHALLENGES CALIFORNIA HANDGUN BAN SCHEME

For Immediate Release: 4/30/2009

 

BELLEVUE, WA and REDWOOD CITY, CA – The Second Amendment Foundation, The Calguns Foundation and four California residents today filed a lawsuit challenging a California state law and regulatory scheme that arbitrarily bans handguns based on a roster of “certified” handguns approved by the State. This case parallels a similar case filed in Washington, DC, Hanson v. District of Columbia.

 

California uses this list despite a ruling by the U.S. Supreme Court last summer that protects handguns that ordinary people traditionally use for self-defense, and a recent ruling by the Ninth Circuit Court of Appeals that the Second Amendment applies to state and local governments. The California scheme will eventually ban the purchase of almost all new handguns.

 

Attorney Alan Gura, representing the plaintiffs in this case, noted that California “tells Ivan Peña that his rights have an expiration date based on payment of a government fee. Americans are not limited to a government list of approved books, or approved religions,” he said. “A handgun protected by the Second Amendment does not need to appear on any government-approved list and cannot be banned because a manufacturer does not pay a special annual fee.”

 

“The Para Ordnance P-13 was once approved for sale in California,” Peña noted, “but now that a manufacturer didn’t pay a yearly fee, California claims the gun I want to own has somehow become ‘unsafe’.”

 

“The Glock-21 is the handgun I would choose for home defense, but California has decided the version I need is unacceptable. I was born without a right arm below my elbow and therefore the new ambidextrous version of the Glock-21 is the safest one for me. The identical model designed for right hand use is available in California, but I can’t use it,” said plaintiff Roy Vargas.

 

Added SAF founder Alan Gottlieb, “The Supreme Court’s decision is crystal clear: Handguns that are used by people for self-defense and other lawful purposes cannot be banned, whether the State likes it or not. California needs to accept the Second Amendment reality.”

 

Co-counsel Jason Davis remarked, “The California Handgun Roster has always been about making the possession of handguns for self defense more difficult by imposing arbitrary and unconstitutional restrictions that limit choice and increase the cost of exercising a fundamental right.”

 

Joining plaintiffs Peña and Vargas are Doña Croston and Brett Thomas. Doña Croston’s handgun would be allowed if it were black, green, or brown, but her bi-tone version is supposedly ‘unsafe’ merely based on color. “I didn’t realize that my constitutional rights depended on color. What is it about two colors that makes the gun I want to purchase ‘unsafe’?”

 

Brett Thomas seeks to own the same model of handgun that the Supreme Court ordered District of Columbia officials to register for Dick Heller. However, that particular model is no longer manufactured, and its maker is no longer available to process the handgun’s certification through the bureaucracy.

 

“There is only one model of handgun that the Supreme Court has explicitly ruled is protected by the Second Amendment and yet California will not allow me to purchase that gun,” said Mr. Thomas.

 

“The so-called ‘safe’ gun list is just another gun-grabbing gimmick,” said co-counsel Donald Kilmer. “California can’t get around the Second Amendment, as incorporated, by declaring most normal guns ‘unsafe,’ and gradually shrinking the number of so-called ‘safe’ guns to zero.”

 

The Second Amendment Foundation (www.saf.org) is the nations oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; and San Francisco on behalf of American gun owners, a lawsuit against the cities suing gun makers and an amicus brief and fund for the Emerson case holding the Second Amendment as an individual right.

 

-END-

Link to comment
Share on other sites

Well ... here it is, less than two weeks from the ruling ... the first of what might be several cases challenging laws in the 9th circuit.

 

Is the micro-stamping law (when it goes into effect) part of the "Safe Handguns Roster"? Would, in other words, a successful conclusion to this lawsuit invalidate the micro-stamping requirement?

 

That would get the other side's panties seriously bunched.

Link to comment
Share on other sites

Well ... here it is, less than two weeks from the ruling ... the first of what might be several cases challenging laws in the 9th circuit.

 

Is the micro-stamping law (when it goes into effect) part of the "Safe Handguns Roster"? Would, in other words, a successful conclusion to this lawsuit invalidate the micro-stamping requirement?

 

That would get the other side's panties seriously bunched.

 

Doesn't appear they are challenging the micro-stamping requirement. It is dormant, absent working technology, so I don't see how anyone can have standing to challenge it.

Link to comment
Share on other sites

It is dormant, absent working technology, so I don't see how anyone can have standing to challenge it.

 

I dunno--the requirement takes effect next January:

 

AB 1471 changes California definitions of "unsafe handgun" and also requires that:

 

"7) Commencing January 1, 2010, for all semiautomatic pistols that are not already listed on the roster pursuant to Section 12131, it is not designed and equipped with a microscopic array of characters that identify the make, model, and serial number of the pistol, etched or otherwise imprinted in two or more places on the interior surface or internal working parts of the pistol, and that are transferred by imprinting on each cartridge case when the firearm is fired, provided that the Department of Justice certifies that the technology used to create the imprint is available to more than one manufacturer unencumbered by any patent restrictions. The Attorney General may also approve a method of equal or greater reliability and effectiveness in identifying the specific serial number of a firearm from spent cartridge casings discharged by that firearm than that which is set forth in this paragraph, to be thereafter required as otherwise set forth by this paragraph where the Attorney General certifies that this new method is also unencumbered by any patent restrictions."

Link to comment
Share on other sites

It is dormant, absent working technology, so I don't see how anyone can have standing to challenge it.

 

I dunno--the requirement takes effect next January:

 

AB 1471 changes California definitions of "unsafe handgun" and also requires that:

 

"7) Commencing January 1, 2010, for all semiautomatic pistols that are not already listed on the roster pursuant to Section 12131, it is not designed and equipped with a microscopic array of characters that identify the make, model, and serial number of the pistol, etched or otherwise imprinted in two or more places on the interior surface or internal working parts of the pistol, and that are transferred by imprinting on each cartridge case when the firearm is fired, provided that the Department of Justice certifies that the technology used to create the imprint is available to more than one manufacturer unencumbered by any patent restrictions. The Attorney General may also approve a method of equal or greater reliability and effectiveness in identifying the specific serial number of a firearm from spent cartridge casings discharged by that firearm than that which is set forth in this paragraph, to be thereafter required as otherwise set forth by this paragraph where the Attorney General certifies that this new method is also unencumbered by any patent restrictions."

 

In my opinion, micro-stamping remains in the 'fictional' category until the sections in bold above are met. They may have absent my knowledge, but I doubt it.

 

In order for a legal challenge to that section, there will have to be a firearm denied due to lack of micro-stamping technology.

Link to comment
Share on other sites

I am getting this feeling. However simpleton, however abstract, however minuscule in meaning it may be - here goes.

 

Congress can pass any law it wants to. States can pass any law they want to. Same goes for local and municipal entities as well. Under the guise of "innocent until proven guilty", these laws are fully enforceable. Law is drafted in as complicated a way as it possibly can be, so courts are so limited in scope that it takes the existence a certain set of perfect specifics in order to actually prove "guilt". If and when that can actually happen, the only "punishment" for the "guilt" is repeal of the law in question - and then maybe only a certain limited part of it.

 

The process has been so slowed that it takes a decade, or more, to even see a case work it's way through the system to be heard.

 

What if there was more of a substantial punishment for enacting and enforcing law found to be unconstitutional? What could that entail? Would such a monster be an effective deterrent to passing such bogus legislation in the first place?

 

Sorry y'all, just thinking out loud.

Link to comment
Share on other sites

What if there was more of a substantial punishment for enacting and enforcing law found to be unconstitutional? What could that entail? Would such a monster be an effective deterrent to passing such bogus legislation in the first place?

 

Interesting idea there. I doubt a politician would propose a questionable bill if the consequence of it later being found unconstitutional would mean being barred from ever serving in public office again. I think the same consequence should apply to all those who voted in support of it too.

Link to comment
Share on other sites

What if there was more of a substantial punishment for enacting and enforcing law found to be unconstitutional? What could that entail? Would such a monster be an effective deterrent to passing such bogus legislation in the first place?

 

Interesting idea there. I doubt a politician would propose a questionable bill if the consequence of it later being found unconstitutional would mean being barred from ever serving in public office again. I think the same consequence should apply to all those who voted in support of it too.

 

I would offer that somewhat of a precedent was set here in Illinois on that angle. After all, the Illinois legislature did make it impossible for Blagojevich to hold elected office, didn't they? I would offer that some elected officials are on this track, at least one like it, when they call for constitutional authority to be cited when passing law. I sure hope that is the case. Requiring such a thing would sure help cut out the games being played - in my eyes anyway.

 

I am left to wonder that if folks like Bobby Rush had to think about some form of direct consequence for bills like HR -45, such a bill would not even be introduced in the first place.

Link to comment
Share on other sites

Here they go ... again. This one 15 days out from the Nordyke ruling, with SAF and CalGuns filing suit to challenge California's "may-issue" system of Right to Carry.

 

Alan Gura and Don Kilmer. What did they call this? The lawyer stimulus package?

 

--------------------------------------------------------------------------------

 

NEWS RELEASE

SAF, CALGUNS CHALLENGE ARBITRARY DENIAL OF RIGHT TO BEAR ARMS IN CALIFORNIA

 

BELLEVUE, WA and REDWOOD CITY, CA – The Second Amendment Foundation, The Calguns Foundation and three California residents today filed a lawsuit seeking to vindicate the right to bear arms against arbitrary state infringement.

 

Nearly all states allow qualified law-abiding citizens to carry guns for self-defense, but a few states allow local officials to arbitrarily decide who may exercise this core Second Amendment right. In the action filed today, Plaintiffs challenge the policies of two California Sheriffs, in Sacramento and Yolo counties, who reject the basic human right of self defense by refusing to issue ordinary people gun carry permits. Of course, violent criminals in the impacted counties continue to carry guns without police permission.

 

State scientist Deanna Sykes believes her sexual orientation and small stature makes her an appealing target for criminals, particularly as she often transports firearms as a competitive shooter and firearms instructor.

 

“I am highly qualified to defend myself against the sort of crime that the Sheriff cannot, despite his best efforts, completely eradicate,” Sykes said. “Violent crime is a real risk in our society, but happily, we enjoy the right to defend ourselves from it.”

 

Andrew Witham has over 15 years experience as a police officer in Britain, and is licensed to carry a firearm while working as a private investigator and campus public safety officer. But despite having been the target of death threats stemming from his work in security, Sheriff John McGinness saw to it that Witham’s license to carry a gun while away from work was revoked upon Witham’s relocation to Sacramento.

 

“I’m allowed to defend other people,” said Witham, “so why can’t I defend myself, where the Bill of Rights guarantees me that right?”

 

Adam Richards, a Northern California attorney, would also exercise his right to bear arms in self- defense. But the Yolo County Sheriff’s policy on gun permit applications is: don’t bother. “How can the Sheriff tell whether I am capable of responsibly exercising my Second Amendment rights, when he doesn’t even acknowledge that these rights exist?”

 

Attorney Alan Gura, representing the plaintiffs in this case, said, “It’s a shame that these Sheriffs don’t think that self-defense is a ‘good cause’ to exercise the right to bear arms, but we’re confident the Second Amendment reflects a better policy.”

 

Added co-counsel Donald Kilmer, “The California carry licensing system is being abused by some officials who are hostile to self-defense rights. The police can regulate the carrying of guns, and that includes preventing dangerous people from being armed. Complete deprivation of the right to bear arms, however, is not an option under our Constitution.”

 

“The Supreme Court’s decision last year in the Heller case shows that there is both a right to keep arms and a right to bear arms,” said SAF founder Alan Gottlieb. “In most states, authorities do not deny a license to carry an operable firearm to any law-abiding applicant that completes training and a background check. This is also the practice throughout much of California. These two Sheriffs must respect the constitutional rights of their citizens to bear arms.”

 

“California is often a leader in so many ways, but our state lags badly in streamlining its firearms laws,” said Gene Hoffman, Chairman of The Calguns Foundation. “We need 21st century gun laws that respect our Constitutional rights, and adopt modern, widely accepted practices that work well throughout the United States. Hopefully this action will serve as a wake-up call to our legislators, and to those officials who stubbornly resist accommodating Second Amendment rights. If they don’t reform, reform will come through litigation.”

 

The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

 

The Calguns Foundation (www.calgunsfoundation.org) is a non-profit legal defense fund for California gun owners. The Calguns foundation works to educate government and the public and protect the rights of individuals to own and lawfully use firearms in California.

Link to comment
Share on other sites

The handgun ban (aka - not unsafe roster) is pretty much a slam dunk. Heller said handguns are protected. CA can't screw around with it by making up requirements primarily to make it harder for law abiding citizens to own handguns. This is part of attacking the restrictions on keeping arms.

 

The carry legislation is a direct attack on the many restrictions we face on the bearing of arms.

 

I am not saying it is the end of restrictive gun laws, but it is the begining of the end of some of the worst of them.

 

Maybe it is time for some of us to stop whining about the way things should be, and put our money where our mouths are, and support the organizations financially that are actually doing something to make things better.

Link to comment
Share on other sites

Archived

This topic is now archived and is closed to further replies.

  • Recently Browsing   0 members

    • No registered users viewing this page.
×
×
  • Create New...