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Old June 30, 2010, 03:06 AM   #1
DG45
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How now, California?

I don't follow all the legal gun stuff very closely because I'm generally satisfied with my states gun laws. I'm not satisfied with the gun laws of California though. My states CCW permit isn't recognized there, and it bugs me because I'd like to drive through the state sometime and visit some of its attractions -Napa Valley, etc. I haven't been back there since about 25 years ago, I went there unarmed with my then wife. One night near Salinas, California we were badly scared by a motorcycle gang, one member of whom rented a room next to us in our motel, then piled about 12 gang members in there and proceeded to have a drug party. Not realizing who was making the racket, I knocked on their door and politely asked them to quiet down so we could sleep. Needless to say, it got pretty scary. In the end, nothing happened thank God, except we spent a very tense, sleepless night in Salinas California. Never Again.

So, after the McDonald decision, is it going to be legal now to carry a gun through California? If not, and if I carry one anyway and am arrested, would I now have a shot at winning a lawsuit against California on Constitutional grounds? (Hey, I could use a million $ of californias money).Seriously, This is a question - I'm not a lawyer and don't know, but it seems to me like I would have grounds for a lawsuit, since the Supreme Court now apparently agrees that the 2nd Amendment applies to the states, and I legally own my gun in my state of residence, have a CCW permit from my state that's recognized by most other states, and am a US citizen of good character (and a veteran) and have no criminal record, don't drink more than an occasional drink, and even have a good driving record. But that's not been good enough for California. I don't think California recognizes ANY other states permits. Since meeting other states requirements is never going to satisfy California, doesn't that mean CCW reciprocity with California is impossible? And doesn't that automatically mean that California is denying non-Californian US citizens rights that are guaranteed to them by the 2nd Amendment to the US Constitution? I don't know. Like I said, this is a question, not an answer. What do you think?
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Old June 30, 2010, 03:12 AM   #2
Wildalaska
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Do it dude, Im sure folks here will contribute to your legal fees, and at the end you probably wont do any time


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Old June 30, 2010, 05:04 AM   #3
Jim March
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I'm in exactly the same boat. Here's the best answers I can come up with, latest version...
Attached Files
File Type: pdf Bearing Arms Under Heller And McDonald - final2.pdf (181.3 KB, 51 views)
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Old June 30, 2010, 10:33 AM   #4
Frank Ettin
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Quote:
Originally Posted by DG45
So, after the McDonald decision, is it going to be legal now to carry a gun through California? If not, and if I carry one anyway and am arrested, would I now have a shot at winning a lawsuit against California on Constitutional grounds? ...Seriously, This is a question - I'm not a lawyer and don't know, but it seems to me like I would have grounds for a lawsuit, since the Supreme Court now apparently agrees that the 2nd Amendment applies to the states,...
Short answer is "no, it is not legal for you to carry a gun in California, and you will not have a shot at winning a lawsuit." If, at this point, you were to be arrested in California on a gun charge, you might have the opportunity to be a test case and defend the criminal charge against you by challenging the constitutionality of the law you were charged under.

So you might have an opportunity to help change California law, and that would be a very nice thing. Thank you. But that would also be an opportunity to spend from $0.5 Million to $1 Million on legal expenses to take the case up through an appeal to the 9th Circuit, or a bunch more to go up to the Supreme Court.

But assuming that you won after several years of litigating your criminal case, you probably wouldn't have a good civil suit against the State. Your arrest was presumptively lawful under a law that was presumptively valid at the time.

Here's how things work:

Courts decide cases. Their decisions in any particular case (like McDonald) are binding only on the parties. But the rulings on matters of law made by a court of appeal in the process of deciding a case become themselves precedent that will be used by other courts to decide other cases, when applicable.

Now in the course of deciding the Heller and McDonald, the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts.

Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.

It has long been settled law that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, we have some reason to hope that the highest level of scrutiny, "strict scrutiny" will apply. Strict scrutiny has thus far been the standard applied to any regulation of a fundamental right enumerated in the Bill of Rights.

The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.

Whichever level of scrutiny may apply, government will at least be able to make its pitch that the regulation challenged satisfies the test. Some will, and some will not. I suspect that now the strategy will be to go after the ones most likely to fall, so as to continue to build a body of pro-RKBA precedent.

So as of this minute, all gun laws remain in force. They are subject to challenge in court. If and when challenged in court, the courts will have to decide those cases using the rulings of the Supreme Court in Heller and McDonald.
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Old June 30, 2010, 03:26 PM   #5
HarrySchell
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Keep in mind that you can carry a handgun in a locked case as long as the ammo is separate, even inside the same range bag.

Also, CA law specifically says someone in their "abode" can carry a loaded firearm, concealed or open. "Abode" is defined so as to include a tent, RV (in camp) or hotel room, and the presumption of the law is that someone entering your abode without your consent is there with intent to harm.

I cannot carry concealed in CA, which doesn't honor my CCW (or anyone else's) and in the urban area I live, self defense is not an adequate "good cause" to get a CA license. A lot of rural areas are effectively shall issue, but many areas have sheriffs or chiefs who like the favors they can acquire by being very selective. It is racially and economically discriminatory in result, but such is the modern "liberal" mind and its contradictions.

Even death threats were not good enough to get me a license. That time has passed, happily, but I still want to carry.

When I travel in CA, I take a handgun with me, however, following the above rules. If I were you I wouldn't hesitate to bring a weapon with you.
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Old June 30, 2010, 03:58 PM   #6
kodiakbeer
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It's been 25 years since I lived in California (worst year of my life!), but when I did I kept a hidden but accessible loaded 9mm in my car.

I won't advise anyone else to break the law, but my reasoning was as follows:

1. I didn't/don't participate in any criminal activities and both myself and my car were low profile - I didn't expect to get pulled over by the police, nor searched if I did.

2. Had a cop asked to search my vehicle, he would have had to lie to get probable cause because there was no way I would consent to such a search. There would certainly be nothing in my manner or appearance to prompt a cop to search my vehicle.

It was a risk, but (for me) an acceptable one. The consequences of not having a gun should I need one, outweighed the consequences of being caught with a gun by a criminal police officer - he'd have to be a criminal to create a reason to search my vehicle.
Most cops aren't criminals, so I figured the odds were heavily in my favor.

That's the way I saw it.
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Old June 30, 2010, 06:32 PM   #7
DG45
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Hey kodiak, I'd like to get up Alaska way and try the beer, and will if I can figure out how to get through california, oregon, and canada with a handgun.

Unfortunately, I believe that the fact I have a CCW in my state pops up whenever a cop stops me for something. I only became aware of this when a cop in another state stopped me for speeding and came sidiling up to my car like he was afraid I was going to shoot him. Really! I think he really believed I was a dangerous threat to him because I had a CCW! I tried to explain to him that I was really on his side, and that if he didn't give me a ticket I'd let him go, but I don't think he though that was very funny. No sense of humor at all.

Anyway, I'm sure that if I got stopped in California, they'd know I had a CCW in my state and would probably use that as probable cause to search me and my car.
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Old June 30, 2010, 08:29 PM   #8
kodiakbeer
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Did he search your car?
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Old June 30, 2010, 10:07 PM   #9
Young.Gun.612
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DG45, how is having a CCW permit probable cause to search your vehicle. Doesn't probable cause entail crime, and a CCW permit isn't a crime.
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Old June 30, 2010, 11:45 PM   #10
DG45
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Nope, the cop in Virginia didn't search my car, but my CCW is reciprocal with Virginia so it was not illegal for me to have a gun in Virginia. The cop just acted like I was dangerous - or at least a very suspicious character. (This was in the great state of Northern Virginia by the way; i.e. DC 'burbs.)

The difference in Virginia and california is that my states CCW permit is not legal in the state of California. I don't know if my possession of a CCW permit issued by my state, which is a fact that would would probably come to the cops attention if he ran my license number on his computer, could be used as probable cause to search my car in California or not, but I would think that a CCW permit would pretty much be a dead giveaway that I may have a gun on me, and as I understand it, that would be illegal in California. Unless the words PROBABLE CAUSE don't actually mean probable cause, it would seem like the fact that I'm probably carrying a gun would give the cop in California the right to search me to determine if iIwas really breaking California law or not. But like I said I'm not a lawyer or a California cop. I was just asking a question here, not giving an answer.
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Old July 1, 2010, 08:11 AM   #11
jmortimer
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There is no reason not to bring a gun with you to Kalifornia you just need to follow the many stupid laws. As discussed you can have a loaded gun at your camp, hotel, RV etc. just beware of the child protection aspects of our many stupid laws. Even if you had a gun, a shoot-out with a bunch of bikers is not a good idea. We will still continue to "lead" the nation in stupid gun laws. The guide to gun laws in the 50 states would be a good investment.
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Old July 1, 2010, 08:52 AM   #12
HarrySchell
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DG45,
I doubt LEO's in other states can link to CCW databases in your state. There are states which require you to advise a LEO that you have a CCW honored by that state, and some which do not...I think there was a post about this here.

In CA, since no CCW's other than CA are honored, I see no reason to mention it. In TX, you are required to advise any officer of your CCW and whether you are armed, but I have not been stopped there since I moved to CA. I have an active TX permit, and I am sure a TX LEO could find it, so I would tell them. I don't mention it to CA LEO's (not that I get stopped much) and none have ever even come close to asking.

I suppose they might suspect you have a CCW because of the plates on your car (is this "profiling") but if you are compliant with CA law you should be fine.
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