|
Forum Rules | Firearms Safety | Firearms Photos | Links | Library | Lost Password | Email Changes |
Register | FAQ | Calendar | Search | Today's Posts | Mark Forums Read |
|
Thread Tools | Search this Thread |
March 29, 2019, 07:21 PM | #1 |
Staff
Join Date: November 2, 1998
Location: Colorado
Posts: 21,824
|
California's ten round magazine ban struck down by Federal District Court (UPDATE: Reinstated)
What is interesting is the firearms history cited by the court in its opinion. Page 28 mentions Da Vinci's organ gun, the Girandoni air gun carried by Lewis & Clark and the Corps of Discovery, the Lorenzoni flintlock repeater with internal magazine for power and ball, an allusion to the Henry ("That damn Yankee rifle you load on Sunday and shoot all week.") and the Lefauchaux revolver (20 shots).
Page 33-35 discuss the level of court scrutiny. General level of thumb the higher the level of scrutiny, the more the court seeks to safeguard the Constitution against government infringements. Strict Scrutiny is applied where is a compelling government interest. Generally there are no compelling government interest and most laws that come under strict scrutiny are struck down as unconstitutional. Mid-level scrutiny is applied to less than essential liberties like the rights of gays. The lowest, rational relation, is when the court feels there must be a rational relation between the law being challenged and government reasoning for the law. When this is applied, the government almost always wins. Fortunately here, the court applied strict scrutiny (page 43) nor was the law "narrowly tailored nor the least restrictive means of achieving these interests." That's pretty d*mning of California's law. http://michellawyers.com/wp-content/...ntiffs-MSJ.pdf As a former Californiastan resident, I am happy to see tyranny crushed. Now we have to work on Coloradostan.
__________________
Vigilantibus et non dormientibus jura subveniunt. Molon Labe! |
March 29, 2019, 07:42 PM | #2 |
Senior Member
Join Date: July 18, 2013
Location: Albany Park, Chicago
Posts: 776
|
No doubt this will be appealed and the 9th Circuit will stay the decision until they reverse it 6-7 years from now.
Just being cynical from past examples. |
March 29, 2019, 07:56 PM | #3 |
Senior Member
Join Date: September 5, 2010
Location: McMurdo Sound Texas
Posts: 4,322
|
Or just move to Texas Gary!
Thanks, this is a (small) glimmer of hope.
__________________
Cave illos in guns et backhoes |
March 29, 2019, 08:58 PM | #4 |
Staff
Join Date: November 2, 1998
Location: Colorado
Posts: 21,824
|
Where I live used to be part of the Republic of Texas. C'mon and git us back. I'm your fifth column against Denverstan.
__________________
Vigilantibus et non dormientibus jura subveniunt. Molon Labe! |
March 29, 2019, 11:50 PM | #5 |
Senior Member
Join Date: November 13, 2006
Posts: 8,276
|
I saw this in the news. Yes,my cynicism ...or loss of naivete prevents me from getting TOO excited...
But things are rather glum in Colorado these days,Gary and I can use a bit of good news while it lasts. Who knows? If it sticks,Colorado might actually get one good thing via California. |
March 29, 2019, 11:57 PM | #6 |
Senior Member
Join Date: October 22, 2016
Posts: 3,881
|
I guess we'll see what happens after the 9th strikes it down during an en masse hearing and what comes of the NY SCOTUS case in regards to how that's going to go down and if indeed SCOTUS affirms that strict scrutiny must be applied for all gun and 2nd Amendment cases.
It does seem tho that the judicial branch is doing more to protect 2A than the other two branches are, so hopefully that keeps up. I mean it's pretty simple the confines the gov't was given in regards to the right to own and carry arms: they weren't allowed to do anything. The only infuriating thing that exists is the "reasonable restriction" wording in Heller, but hopefully, HOPEFULLY the NY case will amend that. At least then all the AWB and magazine capacity and ammo microstamping and various other things can be undone in certain states and prevented federally, but will keep actual reasonable restrictions on stuff like bombs and machine guns. In my ideal world, a machine gun would be treated like an AOW today: you pay a minimal fee for an enhanced background check. I'm okay with that, it's reasonable. Closing the registry and driving prices of already registered machine guns to the price of a new car is not.
__________________
"We always think there's gonna be more time... then it runs out."
|
March 30, 2019, 08:12 AM | #7 | ||
Senior Member
Join Date: October 23, 2018
Location: Republic of Boulder, USA
Posts: 1,475
|
Quote:
Bet you've seen this. Good chart. https://en.wikipedia.org/wiki/Gun_laws_in_Colorado Is the 15 round magazine ban(grand fathered, BTW), the one? Quote:
__________________
PhormerPhantomPhlyer "Tools not Trophies” |
||
March 30, 2019, 09:44 AM | #8 | |
Senior Member
Join Date: December 13, 2005
Posts: 4,439
|
Quote:
I hadn't read this about Heller until just a couple of years ago on this forum. I don't know the origin of the assertion, but it isn't true.
__________________
http://www.npboards.com/index.php |
|
March 30, 2019, 11:00 AM | #9 | ||||
Senior Member
Join Date: November 17, 2000
Posts: 20,064
|
Info:
Here's a good summary to my layperson's eyes of court decisions: https://fas.org/sgp/crs/misc/R44618.pdf Here's a usage of reasonable restrictions from the popular press: https://www.huffpost.com/entry/on-gu...t-emp_b_484828 Heller is full of the use of the words - restriction and restrictions but not reasonable restrictions. The basis for such are discussed. I did find a reference to Justice Stevens previously discussion the basis for 'substantial restrictions'. Here's the Brady Bunch - discussing reasonable restrictions: https://brady-static.s3.amazonaws.co...fterHeller.pdf Quote:
Quote:
United States Court of Appeals,District of Columbia Circuit. Shelly PARKER, et al., Appellants v. DISTRICT OF COLUMBIA and Adrian M. Fenty, Mayor of the District of Columbia, Appellees. No. 04-7041. Decided: March 09, 2007 Quote:
Quote:
__________________
NRA, TSRA, IDPA, NTI, Polite Soc. - Aux Armes, Citoyens |
||||
March 30, 2019, 11:25 AM | #10 | |
Senior Member
Join Date: November 13, 2006
Posts: 8,276
|
Quote:
USN,we covered the Red Flag law . Even the Denver PD came out against it. No need to do reruns. We are working on making some corrections. Supposedly,after Pearl Harbor,Yamamoto said something like "I fear we have awakened a sleeping giant and filled him with a terrible resolve." Time will tell. |
|
March 30, 2019, 11:38 AM | #11 | |
Senior Member
Join Date: November 17, 2000
Posts: 20,064
|
Please, no one post the guns behind every tree bogus quote!!
Let's hope this CA decision has legs. I wrote this elsewhere: Quote:
__________________
NRA, TSRA, IDPA, NTI, Polite Soc. - Aux Armes, Citoyens |
|
March 30, 2019, 01:20 PM | #12 | |
Staff
Join Date: March 11, 2006
Location: Upper US
Posts: 28,685
|
Quote:
The court decision is heartening, especially the use of strict scrutiny as the standard. It may be overturned later, but for now, its a step in the right direction.
__________________
All else being equal (and it almost never is) bigger bullets tend to work better. |
|
March 30, 2019, 02:22 PM | #13 | |||
Staff
Join Date: September 25, 2008
Location: CONUS
Posts: 18,436
|
Quote:
"Restriction," "regulation," whatever you choose to call it -- equals infringement. None of the other rights enumerated in the Bill of Rights comes straight out and says "shall not be infringed." Anyone with a modicum of intellectual honesty would have to admit that "shall not be infringed" means "is not subject to restriction." |
|||
March 30, 2019, 02:42 PM | #14 | ||
Senior Member
Join Date: December 13, 2005
Posts: 4,439
|
Quote:
If someone needs to import the term "reasonable restrictions" in order to interpret a Scalia decision that never uses the term, maybe the offered interpretation is erroneous.
__________________
http://www.npboards.com/index.php Last edited by zukiphile; March 30, 2019 at 02:47 PM. |
||
March 30, 2019, 03:32 PM | #15 | |
Staff
Join Date: September 25, 2008
Location: CONUS
Posts: 18,436
|
Quote:
However, he said "presumptively" lawful. By that, what I believe he was saying was "There are a metric boatload of other gun laws out there that are not before us for discussion in this case, and so for the purposes of this case we will presume that they are lawful ... until each of them has had its own day in court." That's what he meant but, since Heller, lower courts have been using [abusing] that statement to justify denying those other laws their day in court by claiming that the SCOTUS has already decided that they are lawful. It's really a sad day when senior justices on the United States courts of appeals are functionally illiterate. |
|
March 30, 2019, 03:40 PM | #16 | |
Senior Member
Join Date: November 17, 2000
Posts: 20,064
|
If the District court in 2007 used the term, it pre-dated Heller. It did not appear in Heller but the folks after the decision, seem to have picked it up in their media prose. If later courts used it, I didn't search on that.
Does the use by the District Court earlier on, somehow imply that was a principle used by the restrictions or discussions by Scalia on various items? That I don't know. You see things in Heller like: Quote:
https://www.supremecourt.gov/opinions/07pdf/07-290.pdf So the use of restrictions in a positive or negative sense is found through the decision and dissents. Did the Parker prose become that attached to the Heller prose? Seems like it. Given the discussion in Heller of some restrictions - that phrase takes on a life of its own and used against the RKBA. It make a 'literalism' defense (a term used as a fault in critiques of the Humanities pedantic nature in discussion modern politics) of Heller, miss the issue in some sense. If that's what the media, people and lower courts think - it's a problem.
__________________
NRA, TSRA, IDPA, NTI, Polite Soc. - Aux Armes, Citoyens |
|
March 30, 2019, 04:46 PM | #17 | |||
Senior Member
Join Date: December 13, 2005
Posts: 4,439
|
Quote:
Quote:
The existence of restrictions isn't disputed. Heller noting the existence of restrictions cannot competently be construed to mean that Heller legitimated "reasonable restrictions" as a standard for firearms restrictions. Quote:
__________________
http://www.npboards.com/index.php |
|||
March 30, 2019, 05:11 PM | #18 | |
Senior Member
Join Date: November 17, 2000
Posts: 20,064
|
Interesting topic - if we resolve the issue of Heller not having the term in it, does it aid in advancing the RKBA cause? The list of conditions Scalia mentioned seem to get thrown up as some kind of restrictions, that seem 'sensible' and should be expanded upon.
The literalism issue is seen a discussion of the Wall (which we DON'T) want to discuss itself. Trump seeming used the term 'medieval' - https://www.washingtonpost.com/outlo...=.1991052957d8 This led to a bunch of scholars having hissy fits over whether such a Middle ages wall could work as wanted: https://www.washingtonpost.com/outlo...=.1991052957d8 along with actual use of the term Medieval was insulting to the Middle Ages and thus trivializing the debate: https://www.chronicle.com/article/Th...d=wcontentgrid Here's a quote: Quote:
Not being stupid, antigunners picked this up we MSSA - military style semi-autos being common parlance. NZ uses it legally now. The point being - is correcting the non-usage of reasonable restrictions in Heller going to get us anywhere as the next refrain after one corrects the assault rifle usage and/or reasonable non-usage in Heller, will be that the weapons under consideration should be banned as they are extremely dangerous and who cares about those two points.
__________________
NRA, TSRA, IDPA, NTI, Polite Soc. - Aux Armes, Citoyens |
|
March 30, 2019, 05:28 PM | #19 |
Senior Member
Join Date: June 6, 2002
Location: Massachusetts
Posts: 271
|
Those of us behind enemy lines in Massachusetts, which has a very restrictive magazine ban, are watching this ruling closely.....
|
March 30, 2019, 05:56 PM | #20 |
Senior Member
Join Date: November 17, 2000
Posts: 20,064
|
Fingers crossed as it is a long path to go for a decision which covers the entire country.
I would like our friendly legislators and White House, to perhaps mention this is a good step forward. Maybe the DOJ could chime in. It chimes in on other issues.
__________________
NRA, TSRA, IDPA, NTI, Polite Soc. - Aux Armes, Citoyens |
March 30, 2019, 06:53 PM | #21 | |
Senior Member
Join Date: July 18, 2013
Location: Albany Park, Chicago
Posts: 776
|
Quote:
|
|
March 30, 2019, 07:19 PM | #22 | |
Senior Member
Join Date: November 4, 2013
Location: Western slope of Colorado
Posts: 3,678
|
Quote:
|
|
March 30, 2019, 07:27 PM | #23 | ||||||
Staff
Join Date: September 25, 2008
Location: CONUS
Posts: 18,436
|
Methinks to properly discuss Heller, we should go to Heller rather than argue about who said what about what they think Heller said, or might have said, or should have said.
The decision: https://www.supremecourt.gov/opinions/07pdf/07-290.pdf Right at the start, under "Held," on page 2: Quote:
Quote:
The holding references pages 22-28, so logically we should probably look there next. On page 22 Scalia wrote, "Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008)." In the First Amendment, it says that "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." So here we find the word "abridge," where in the Second Amendment we find the word "infringe." Since there is a considerable judicial track record regarding allowable "abridgements" of First Amendment rights, apparently Mr. Scalia extrapolated from that to posit that the Second Amendment is likewise subject to "abridgement" (infringement). But ... there isn't much of a track record at the SCOTUS level to back up this assertion/assumption. After some discussion of the relationship of the prefatory clause to the operative clause, on page 25 Mr. Scalia gets back to the subject we are interested in: Quote:
Quote:
Somehow, I don't think such a precedent would gain much traction today. This historical restriction, in fact, would almost certainly fail a constitutional review today because it wasn't aimed at preventing crimes or mass murders, it was aimed at keeping guns out of the hands of free black men. In other words, it was blatantly discriminatory. When we get to page 54, Mr. Scalia wrote, "Like most rights, the right secured by the Second Amendment is not unlimited." The full section, for context, reads as follows: Quote:
Moving on to page 56, we find this: Quote:
There's more. The full decision runs to 157 pages, and we're only up to page 60. But this post is getting too lengthy. My point simply is that if we're going to discuss what's in the Heller decision, we need to look at the Heller decision rather than argue over what what's-his-name said so-and-so said was in Heller. Last edited by Aguila Blanca; March 30, 2019 at 07:34 PM. |
||||||
March 30, 2019, 07:38 PM | #24 |
Staff
Join Date: November 2, 1998
Location: Colorado
Posts: 21,824
|
USNRet93 - I actually live down south near the New Mexico border. I hate driving up to Denver and re-living the Bay Area traffic jam experience. Years ago I was leaving Denver (got there at about 6 a.m.) and going SB on I-25 back for the border. It was Saturday and 7 a.m. and the traffic jam on Monument was backed up for miles. Traffic jam on Saturday? Forget it.
__________________
Vigilantibus et non dormientibus jura subveniunt. Molon Labe! |
March 30, 2019, 07:45 PM | #25 | |
Senior Member
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,872
|
Quote:
Last I checked I can't get a A1 Abrams , what about different types of missile systems ? Wait I know , how about I get a F22 Raptor fully loaded for my neighborhood watch program ????? yes over the top but with out scalias words in Heller one would be able to have any arm they want . Do you really want the guy next door having a MOAB Wait what ???? what do you mean the second amendment does not allow to carry any arm of any type for any reason in any place ??? IMO that's the debate and cluster bump Scalia was trying to avoid with those word . How are side keeps letting the other side get away with thinking he meant restrict even more is absurd . Why else would the in common use portion be in there as well ? Are side needs better talking points !
__________________
If Jesus had a gun , he'd probably still be alive ! I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again . |
|
Thread Tools | Search this Thread |
|
|