How can California outlaw possession of magazines...

[Spats McGee]

Both the Fifth and Fourteenth Amendments have Due Process clauses which require "notice and an opportunity to be heard" life, liberty or property" may be taken. There are confiscatory takings and regulatory takings and there's a whole body of law called Takings Jurisprudence in which this stuff has been litigated.

I haven't looked at the law in question, but the body of this discussion leads me to believe that CA didn't actually, physically take the magazines, so it's not a confiscatory taking. So let's turn to regulatory takings.

IMHO, Question #1 needs to be: "Was it a Taking?" Obviously, the State will argue that it was not, and I'm going to play the Devil's Advocate for a few minutes.

I would turn to the Due Process Clause of the A14 for guidance, because that's where the bulk of the Takings litigation has occurred. I would argue that Due Process occurred in the legislative arena, and that every person charged with possession of hi-cap mags, gets Due Process in the form of a criminal trial, as well.

On the issue of compensation, were I defending the legal challenge to this, I would try to frame the issue as a "public health, safety and welfare" issue, and would argue that the State acted under its police power to protect the public health, safety, and welfare when it outlawed those evil, dastardly, high-capacity, death-dealing magazines.

The “harmful or noxious uses” principle was the Court's early attempt to describe in theoretical terms why government may, consistent with the Takings Clause, affect property values by regulation without incurring an obligation to compensate—a reality we nowadays acknowledge explicitly with respect to the full scope of the State's police power. See, e.g., Penn Central Transportation Co., 438 U.S., at 125, 98 S.Ct., at 2659 (where State “reasonably conclude[s] that ‘the health, safety, morals, or general welfare’ would be promoted by prohibiting particular contemplated uses of land,” compensation need not accompany prohibition); see also Nollan v. California Coastal Comm'n, 483 U.S., at 834–835, 107 S.Ct., at 3147 (“Our cases have not elaborated on the standards for determining what constitutes a ‘legitimate state interest[,]’ [but] [t]hey have made clear ... that a broad range of governmental purposes and regulations satisfy these requirements”). . . . . These cases are better understood as resting not on any supposed ‘noxious' quality of the prohibited uses but rather on the ground that the restrictions were reasonably related to the implementation of a policy—not unlike historic preservation—expected to produce a widespread public benefit and applicable to all similarly situated property.” 438 U.S., at 133–134, n. 30, 98 S.Ct., at 2664, n. 30.“Harmful or noxious use” analysis was, in other words, simply the progenitor of our more contemporary statements that “land-use regulation does not effect a taking if it ‘substantially advance[s] legitimate state interests'....” Nollan, supra, 483 U.S., at 834, 107 S.Ct., at 3147 . . . .

Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1022–24, 112 S. Ct. 2886, 2897, 120 L. Ed. 2d 798 (1992) (edited for brevity)

[Frank Ettin]

Thank you, Spats -- particularly the citation for Lucas. The part of the opinion quoted helps us understand how we need to approach challenge to a law like a large capacity magazine ban.

As the Court wrote in Lucas (from Spat's quotation):

...These cases are better understood as resting not on any supposed ‘noxious' quality of the prohibited uses but rather on the ground that the restrictions were reasonably related to the implementation of a policy—not unlike historic preservation—expected to produce a widespread public benefit and applicable to all similarly situated property.” 438 U.S., at 133–134, n. 30, 98 S.Ct., at 2664, n. 30.“Harmful or noxious use” analysis was, in other words, simply the progenitor of our more contemporary statements that “land-use regulation does not effect a taking if it ‘substantially advance[s] legitimate state interests'....” Nollan, supra, 483 U.S., at 834, 107 S.Ct., at 3147 . . . ..

The question becomes whether government had the power to further a legitimate interest in the particular way. So while government has a legitimate interest in suppressing the counterfeiting of currency, attempting to do so by broadly prohibiting ownership of printing presses is arguably outside the power of government as repugnant under the First Amendment.

So the thrust of a challenge to large capacity magazine bans or regulation will need to be that such would be impermissible regulation of a right protected by the Second Amendment.

[xcc_rider]

I realize this is the law and civil rights section but the question was "how can California outlaw the possession of magazines", not "how can California legally outlaw the possession of magazines".
It had\has little to do with the law or civil rights imho. The challenges will but not the "how".

The simple answer is,

WE LET THEM!!!

The sad truth is only a small percentage of the gun owners of the state bothered to sign the petition to place a proposition on the ballot to protect our rights.
What that percentage was that voted, I don't know but based on the petition drive it couldn't have been that high.


So we did it to ourselves...

[Wyosmith]

xcc-rider is 100% correct.

Here are 2 principals that people seem to forget.

#1. All governments derive their power from the consent of the governed.
Consent is give with every tax dollar.
People seem to think the exercise of rights is free and safe. History and even the founders of this nation prove beyond doubt that it is neither.
Organized resistance is not unlawful. The government will tell you it is "illegal", but that too falls under the principal above. George Washington wrote extensively about this very thing. One of his more famous quotes is this: “Government is not reason, it is not eloquence,—it is force! Like fire, it is a dangerous servant, and a fearful master; never for a moment should it be left to irresponsible action.”

Cowards will do all the can to stay "safe" including censoring those that would set them free. And that is how you loose your liberties.

#2. All statutes are presumed legal until their lawfulness is challenged.

This is the foundation for existence of appeals proceedings in the 1st place. If this principal was to be removed there is no longer any reason for any appeal, and never a reason for a jury. In fact, there would be no reason for open courts at all. Just cops and politicians would be fine.

Yup, the folks of Kalifornia let them do it, and let them do it every day.

[jdc1244]

...the folks of California let them do it, and let them do it every day.

Troubling the inconsistent application of “states’ rights.”

California’s firearm regulatory measures reflect the will of the people, consistent with the democratic (political) process, and a republican form of government, regardless how unwarranted, useless, or ill-conceived those measures might be, where the will of the people should be acknowledged and respected.

And the people of California likewise have the right through the political process to repeal such measures; or failing that, those adversely affected are at liberty to challenge firearm regulatory measures in court.

Until such time as the State’s firearm regulatory measures are invalidated by the courts, they are in fact Constitutional, where no Second Amendment rights have been violated.

What’s troubling is that when the states seek to violate other rights and protected liberties – where the Supreme Court has in fact ruled that such efforts are un-Constitutional – advocates and defenders of the Second Amendment are nowhere to be found, claiming that the ‘will of the people’ should be acknowledged and respected.

If the courts have the authority to invalidate measures perceived to be in violation of the Second Amendment, where the states and the will of the people are subordinate to the courts and the rule of law, and discarded accordingly, then so too do the courts have the authority to invalidate other measures that violate the rights of citizens, setting aside the will of the people.

The Constitution and its case law are meaningless unless applied consistently; Second Amendment advocates can’t have it both ways.

[ATN082268]

Originally Posted by jdc1244

What’s troubling is that when the states seek to violate other rights and protected liberties – where the Supreme Court has in fact ruled that such efforts are un-Constitutional – advocates and defenders of the Second Amendment are nowhere to be found, claiming that the ‘will of the people’ should be acknowledged and respected.

I'm not sure how you came to the conclusion that people, in general, who support the 2nd Amendment have little to no regard for other rights in the U.S. Constitution and are O.K. with the will of the majority that tramples those rights.

[44 AMP]

– advocates and defenders of the Second Amendment are nowhere to be found, claiming that the ‘will of the people’ should be acknowledged and respected.

Which makes them what? Human???

Perhaps the reason you don't see advocates and defenders of the 2nd Amendment "defending" other citizen's rights issues is..

1) they don't identify themselves as pro 2ndAM supporters while working for (or against) OTHER issues.

2) Organized pro 2A groups don't have a voice (or standing) in other issues. Doing anything outside of 2A issues is outside of their charter, ethically if not legally.

I think the state of our laws today does not actually reflect the will of the people, but the will of agenda driven political groups, and the apathy of the people in general. In general, I think that we get these laws not because the majority said "yes, do this!" but because a minority said yes, do this, and the majority didn't say "no".

IF, for instance, you want to make it the law that one can no longer purchase and play with a left handed golf club over 23" in length, because it is now classified as a "high impact driver", I'm OK with that, because...

#1) I don't play golf
#2) I'm not left handed

So, since the law does not affect me in the slightest, either I don't vote against it, or I vote for it, because I agree with the sound byte propaganda about how the law will make things better for all of us, or because my PARTY supports it.

AND, possibly because I realize that in the long run, my individual vote doesn't really matter, and the govt is going to do what they want anyway, one way, or another.

CA is famous for their government (at various level and locations) supporting SOME voter passed laws, and tying up others in court challenges for decades.

Want the right to marry your pet turtle? OK. Want to roll back a specific tax? See you in court. After court, until you either get tired (and broke) and go away, or we get a ruling we like.

Other states do it, too. Its just that CA gets more press and is better known for doing it.

My state passed an initiative some time back, to set the fee for our car tabs (registration fee) at $30. So, to comply with the law, they did set the fee at $30.

last month, when I registered my little econobox car, it cost $60. If I had been registering a truck, it would have been $80-120+, depending on the weight class of the truck.

The DID set the car tab fee at $30. THEN they added various NEW taxes and fees (which we didn't get a public vote on) to make up for what they lost due to being legally required to only charge $30. One way, or another, they get what they want, and most people realize this, so they don't fight very hard, if at all.

Some times, we do win, and positive and lasting change is effected. But only sometimes. If more people cared and took a more active role advocating AND voting, it might be more than just sometimes.

[xcc_rider]

If more people cared and took a more active role advocating AND voting, it might be more than just sometimes.

That's just my point, if you don't stand up and be counted then you lay down and be rolled over.

Iirc less than a 1/3 of the registered gun owners signed the pro gun petitions. The total signatures was less than half of what they needed to place them on the ballot.

Doesn't matter in the end though, if all the registered gun owners would have voted to strike down the antigun proposition that was on the ballot if would have failed overwhelmingly.

They didn't and it passed.
Really sad isn't it?

[Aguila Blanca]

Originally Posted by 44_AMP

]I think the state of our laws today does not actually reflect the will of the people, but the will of agenda driven political groups, and the apathy of the people in general. In general, I think that we get these laws not because the majority said "yes, do this!" but because a minority said yes, do this, and the majority didn't say "no".

Precisely.

[ATN082268]

Originally Posted by 44 AMP

I think the state of our laws today does not actually reflect the will of the people, but the will of agenda driven political groups, and the apathy of the people in general. In general, I think that we get these laws not because the majority said "yes, do this!" but because a minority said yes, do this, and the majority didn't say "no".

The special interest groups do seem to overwhelmingly drive lawmaking today than the much larger numbers of other people that lawmakers are supposed to represent. In general though, the lawmakers are the ones who vote on laws especially like the ones designed to circumvent voter approved laws on the ballot.

Originally Posted by 44 AMP

The DID set the car tab fee at $30. THEN they added various NEW taxes and fees (which we didn't get a public vote on) to make up for what they lost due to being legally required to only charge $30. One way, or another, they get what they want, and most people realize this, so they don't fight very hard, if at all.

Some times, we do win, and positive and lasting change is effected. But only sometimes. If more people cared and took a more active role advocating AND voting, it might be more than just sometimes.

Possibly. Most people I know have full time jobs with precious little time to spend with their families, much less trying to also do the job of a lawmaker who is being paid to and should be doing their own job in the first place. But even if you managed to replace all the lawmakers with different ones, what makes you think the end result will be any different?

[Koda94]

Ill just throw this out here regarding passing laws reflecting the will of the people. Here in Oregon we now have Universal Background Check (SB941 "passed" last year) that was not voted on by the people. The anti-gun majority knew it wouldnt pass here and so pushed the law under our Emergency Clause specifically so the public would not be able to vote it down.

[Frank Ettin]

Originally Posted by ATN082268

The special interest groups do seem to overwhelmingly drive lawmaking today than the much larger numbers of other people that lawmakers are supposed to represent.....

We are a special interest group. Gun owners and firearms related businesses belong to and contribute to various organizations, like the NRA-ILA, the NSSF, the GAO, the SAF, etc., which hire professional legislative advocates to promote our interests in state legislatures and in Congress.

Originally Posted by ATN082268

...In general though, the lawmakers are the ones who vote on laws especially like the ones designed to circumvent voter approved laws on the ballot....

Very few laws are "voter approved laws on the ballot." The vast majority of laws are enacted by legislatures, i. e., bodies of representatives elected by the voters.

On the other hand, universal background checks are now legally required in Washington State and in Nevada because of laws adopted directly by voters on the ballot. The Nevada law was just approved in this recent election. The Washington State law was adopted a while ago, and RKBA advocates have been lobbying for legislative relief or clarification.

Originally Posted by ATN082268

....Most people I know have full time jobs with precious little time to spend with their families, much less trying to also do the job of a lawmaker who is being paid to and should be doing their own job in the first place. But even if you managed to replace all the lawmakers with different ones, what makes you think the end result will be any different?

We elect our legislative representatives, and those legislative representative tend to do what the folks who elected them want them to do. Anti-gun legislators promote gun control because the voters who put them into office want them to promote gun control.

As long as we are ineffective at supporting and getting elected representatives who will support our values and interests, our opponents will be putting into office representatives who will further their values and interests.

[Aguila Blanca]

Originally Posted by Frank Ettin

As long as we are ineffective at supporting and getting elected representatives who will support our values and interests, our opponents will be putting into office representatives who will further their values and interests.

^^^ And that about sums it up.

[Koda94]

Anti-gun legislators promote gun control because the voters who put them into office want them to promote gun control

Are you shur about that? Most of our legislators are voted in because of their stand on many other issues that are much more important to people than guns. Half of America doesnt own guns, and more than half of the gun owners are not single issue voters. The result is virtually all of the gun control laws are ineffective knee jerk reactions from the legislatures already in office....

[Frank Ettin]

Originally Posted by Koda94

Are you shur about that? Most of our legislators are voted in because of their stand on many other issues that are much more important to people than guns. Half of America doesnt own guns, and more than half of the gun owners are not single issue voters. The result is virtually all of the gun control laws are ineffective knee jerk reactions from the legislatures already in office....

I admit that I oversimplified the situation. It's a lot more complicated than that.

It's true that the vast majority of people are not "one issue" voters. Each candidate has a platform -- an assortment of positions on a variety of issues such as gun control, minority rights, welfare, immigration policy, gay rights, women's issues, foreign policy, free trade, etc. To some extent a candidate's platform is defined by the platform of the party with which he's affiliated.

Different voters have different core, or defining, interests. For example, someone might have a very strong interest in minority rights and will favor a candidate whose platform position on minority rights most closely aligns with his own. He will do so even though that candidate's pro-gun control position is inconsistent with the voter's [weak] pro-RKBA view.

In many ways, in a number of States especially, the RKBA community has severe "packaging" problems as far as available candidates go. Too often a pro-RKBA candidate's position on various social issues make him an unacceptable choice for some voters who are pro-RKBA but also more liberal on various social issues. I see that a lot here -- where I know some shooters who just can't seem to bring themselves to go along with the one reasonably pro-RKBA candidate because of his positions on other issues.

But "packaging" is also an issue on the voter side as well. An anti-RKBA viewpoint seems to go along with what is for many voters the right assortment of positions on other issues. And even beyond that, for some people and anti-RKBA position is the litmus test.

But at the end of the day it's still the reality that we elect our representatives; and those representatives get into office because their positions on a variety of issues, including the RKBA, are acceptable to a majority of voters. If we could have succeed in electing pro-RKBA candidates, we'd get pro-RKBA laws.

[Koda94]

That is true, what the gun-rights community desparately needs is a very strong pro-gun legislators that are liberal on social issues. They just dont seem to exist, a lot of conservatives are stuck in the conservative rut socially.

[Skans]

a lot of conservatives are stuck in the conservative rut socially.

Well, that's kind of the definition of a conservative. A moderate is someone who tends to share some traditionally conservative views and some traditionally liberal views. Perhaps both parties need more moderates. As it stands now, the Republicans can't win elections without the support of the religious right. And, the Democrats can't win elections without the support of the activist minority groups on the left. Third parties get little to no traction because they tend to support even more extreme special interests which don't attract any broad group of people.

If the Democrats would strongly embrace Gun Rights, they would probably win elections forcing the Republicans to move to the center on some issues. But, that would mean throwing away big money from people like Bloomberg and Soros.

[Koda94]

As it stands now, the Republicans can't win elections without the support of the religious right

I think if they dumped them completely and their 2000 yr old stuck in a rut superstitions the Republicans would win more elections if they embraced more socially liberal views. Its really whats holding them back, and they are too stuck in their rut to see it...
Lets face it the Republican partys been falling apart over this, being conservative does not mean you have to support legislation that discriminates against homosexuals, deny climate change in the face of all science, womens rights, and other topics often based on the influence of the church...

I guess that makes me a "moderate" conservative, but there is no political party representing that. Thats why the Democrats have dominated for so long because many conservatives can no longer vote for discrimination conciously, even if they have strong fiscal and other ( 2A) conservative views.

[Spats McGee]

Let's steer thread away from "General Politics" and back to the topic raised by the OP, please.

[vranasaurus]

Its been awhile since I posted.

The law is not as intuitive or simple as people often make it out to be. Simply reading the text of the constitution is not dispositive of its scope or meaning.

A good example is the Fourth Amendment which reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

While the text of the amendment doesn't require a warrant to conduct a search the Supreme Court has said that a search without a warrant is per se unreasonable. This is subject to many exceptions good faith, automobile, plain view, etc...

In his concurrence in California v. Acevedo, Scalia said the following:

Even before today's decision, the "warrant requirement" had become so riddled with exceptions that it was basically unrecognizable. In 1985, one commentator cataloged nearly 20 such exceptions, including "searches incident to arrest . . . automobile searches . . . border searches . . . administrative searches of regulated businesses . . . exigent circumstances . . . search[es] incident to nonarrest when there is probable cause to arrest . . . boat boarding for document checks . . . welfare searches . . . inventory searches . . . airport searches . . . school search[es]. . . .

If you read Scalia's concurrence in Acevedo, he is clearly frustrated with the court declaring a "general requirement" for a warrant and at the same time littering it with so many exceptions that it becomes a useless rule. He would simply go back to using a test of reasonableness to determine whether a warrantless search was permissible. But he was unsuccessful in ever getting a majority to join him in that.

That is not all that intuitive or simple.

The 14th amendment due process clause is no different. The "substantive due process" doctrine is not at all intuitive or simple.

We pay Judges to sort out these questions and they do.

The 5th amendment takings clause is no different. While I am a lawyer I am not an expert in this very complicated area of law. I only have a cursory understanding of it. A brief westlaw search seems to indicate that establishing a regulatory taking is difficult.

In any suit challenging the California law it would certainly be worth researching and may be worth making as one of the claims in addition to Second Amendment claims.

[CowTowner]

Not being a lawyer or even a college graduate, thanks for the explanation I could understand, vranasaurus.
I have a question, is there not something called "expos facto" which might also be included in a challenge to this ban?
If I've gone stupid here, it's OK to tell me so.

[Frank Ettin]

Originally Posted by CowTowner

...is there not something called "expos facto" which might also be included in a challenge to this ban?

No, I'm afraid that the constitutional prohibition of expost facto laws doesn't help. These sorts of bans aren't considered expost facto.

Ex post facto essentially means being subject to criminal sanctions today for an act performed in the past which was legal when performed. That is different from from being subject to criminal liability for the continued possession of a thing after the effective date of a law making that thing illegal for you to possess. So what's being made illegal here, today is not that you had a large capacity magazine back in the days when it was legal. The crime is still having that magazine today, now after it has been made illegal to possess.

I cited court decisions on the subject back in post 21.

[CowTowner]

Thank you, Frank.