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Old June 27, 2012, 09:28 PM   #354
Charles Nichols
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Join Date: April 23, 2012
Posts: 20
Scocca et al v. Smith et al

If Kilmer had wanted to stand by his complaint, FRCP Rules 59 and 60 give him that option. The dismissal with prejudice of his equal protection claim under the California Constitution could have been appealed immediately but he never should have brought that claim in a concealed carry lawsuit.

Here is why.

California used to have a law banning the carrying (or even possession) of handguns by persons not born in the United States which was upheld by the California Supreme Court in 1924. That portion of the law was overturned by the California court on equal protection grounds a half century later. Which, at first glance, might have seemed like a good idea to make the equal protection claim under the California Constitution until one tracks back the two cases cited by the District Court judge in the denial: People v. Yarbrough and Kasler v. Lockyer.

Both track back to the California Supreme Court decision from 1924 (In Re Ramirez) which held; that the Second Amendment was not an individual right, it concerned only militias and applied only to the Federal Government.

The Court in Ramirez relied instead on Nunn v. State (which was cited in Heller) to decide whether or not Ramirez had the right to carry a handgun concealed (he did not) but even though there is a right to openly carry a handgun, Ramirez, as someone who was not born in the US, did not have a right to even possess a handgun let alone carry one.

The Court did remark that had the law prevented Ramirez from carrying a loaded rifle or shotgun then it might be unconstitutional.

So even if the Federal judge hadn't dismissed Kilmer's claim under the California Constitution it would only have hurt his concealed carry case in the long run.

My claims under the California Constitution in my lawsuit were dismissed for entirely different reasons. In a complaint seeking purely declarative and/or prospective injuncitve relief (no monetary damages, even indirectly) the court held that the Eleventh Amendment barred my claim.

Apparently the Judge assigned to me case does not understand Ex Parte Young (1908).
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