California "Assault Weapon" ban struck down - for now

[Aguila Blanca]

I am sympathetic to that reading, but let's recognize that "shall not be infringed" leaves room for argument and that the position you state and I like isn't current law. It's whether the explanation of our position coheres that should give the position weight rather than the credentials of the the people advancing it. Both we and Chemerinsky are entitled to our critiques and should have those critiques evaluated on their merits.

Yes, I understand. And I know that Justice Scalia said in the Heller decision that the RKBA is not unlimited (or something to that effect). And I know that my fellow moderator, Frank Ettin, has pointed out that, historically, all the rights in the Bill of Rights have been subject to reasonable regulation.

Justice Scalia was constrained by having to write an opinion that was acceptable to Justice Kennedy in order to keep the majority. I am not so constrained. My view is that the 2A should be interpreted as meaning what it meant to the old dudes who wrote it, and history and context make it abundantly plain that what they intended was nothing less than that the law-abiding populace would NEVER be disarmed. In fact, this was considered to be so obvious that the Federalists among the Founders didn't think a Second Amendment (among the other rights in the Bill of Rights) was even needed, because it was so obvious (to them) that the Constitution didn't give the government any power to disarm the People. We got a Bill of Rights only because some states rebelled, and agreed to ratify the new constitution only with the promise that a Bill of Rights would be added.

So now we need to determine what "shall not be infringed" meant to the Framers. To me, in 2021, it means "shall not be limited or regulated." A better clue might be Samuel Johnson's Dictionary from 1785.

To Infringe:

1. To violate; to break laws or contracts.
2. To destroy; to hinder.

Infringement:

Breach; violation.

Seems pretty clear to me, but I'm not a lawyer, I'm just a wordsmith.

 

[44 AMP]

I have my own explanation, I think its fairly apt, but feel free to take it for what you think its worth.

Where is the fringe??? On a flag or a carpet, or a blanket, or the surry with a fringe on top..its on the outer edges.

when you are infringing something, you are (almost literally) treading on the outer edges.
I think the Founders chose that word with the thought that the right to arms was so important that the Govt should be prohibited from even treading on the outer fringes, and since it govt was forbidden even the outer edges of the right, then the core of the right would always remain inviolate.

it was a grand idea. worked for almost a couple hundred years...

Its not what we've got today, but then, neither is our republic what it was set up to be....

One of our main problems is that there are a significant number of people (and people in authority) who feel that as long as you can get some kind of gun, (single shot preferred) no matter the cost, or the complexity required to meet regulatory requirements, then your rights are not being violated or even infringed.

One of my friends has been working part time in a local gunshop for the past few years, and has seen first hand the wave of new to guns buyers, who are amazed that they can't just buy a gun like buying groceries at WalMart.

Very, very few of them had any idea the required forms waiting periods and background checks a legal FFL dealer has to do for every gun they sell.

some even get a deer in the headlights look when its explained that they voted for it. A few seem to get it, so there is hope....

 

[Metal god]

Infringe

I think there's a part of the 2nd amendment people forget . That is , how the words work together especially in law and contracts . It's been my understanding since I first started writing proposals/contracts for construction work . When you use the word "shall" in a sentence , anything proceeding it must be done or not done with out exception . There is literally no wiggle room if I write in a contract " I shall remove all trees on the property " I must remove all trees regardless . If I were to write I "will" remove all trees , that does not hold the same legal weight . At least that's what I was told 30 years ago by a contractor who had been writing contracts and proposals for decades .

Anyways , my point is that you can't just look at one word in a document and dissect it as if it's the only thing relevant in the document . It all matters especially the words preceding it , They put context to the the meaning of the sentience and word in question .

 

[TomNJVA]

Our founding fathers were very smart men. I am sure every Article and Amendment in our constitution was discussed, debated, and wordsmithed to death before the final version was put to ink. If they intended that our right to keep and bear arms was for militia use only, all they had to say was "...the right of the people to keep and bear arms for use in the militia shall not be infringed". They didn't, and to me it's what they didn't say that offers the clearest understanding of their intent.

 

[Aguila Blanca]

Our founding fathers were very smart men. I am sure every Article and Amendment in our constitution was discussed, debated, and wordsmithed to death before the final version was put to ink. If they intended that our right to keep and bear arms was for militia use only, all they had to say was "...the right of the people to keep and bear arms for use in the militia shall not be infringed". They didn't, and to me it's what they didn't say that offers the clearest understanding of their intent.

The state constitutions of several of the original thirteen colonies have 2A analogs that mention keeping and bearing arms "in defense of the self and of the state," or words similar thereto. Early drafts of the Bill or Rights were longer -- the language of the 2A was edited down as part of an overall effort to shorten the overall length of the Bill of Rights.

At the time the then-proposed new constitution was being discussed, both those who favored a strong central government (the Federalists) and those who feared a strong central government (the Anti-Federalists) wrote large numbers of articles that were circulated around the country for the purpose of influencing the populace. Since history is written by the winners, The Federalist Papers are much better known than the Anti-Federalist papers, but collections of both have been compiled, organized, and published.

The Federalist Papers were all written by three men: James Madison, John Jay, and Alexander Hamilton. Remember: the Federalists were the side who didn't think the new constitution even needed a bill of rights, because they were so certain that all those rights were so well understood and that the constitution provided sufficient limits on the central government that a BOR was completely unnecessary. [How wrong they were!]

In The Federalist #46, James Madison wrote the following:

Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.

In other words, the intent of the very men who created our Constitution was that the entire populace be armed, and armed sufficiently that the People would always be stronger than any standing Army.

 

[HiBC]

For reasons stated in the Declaration of Independence,our Founders forged a Constitution based on Individual Liberty and Limited Government.
Through long patterns of history,they recognised governments are comprised of flawed human beings who inevitably act on all sides of human nature.
We will always have people who seek power and control.
They tend to gravitate toward government.

Wise People,our Founders.

They chose the words "The Right of the People" . The People. That pretty much tells me WHO has the Right.

"To Keep and Bear Arms" They did NOT say "Such arms as are deemed approved" . In fact,it included warships. It was not till the NFA of 1934 that some arms were not actually outlawed, the slimy workaround of a "tax stamp" was applied.

" Shall Not Be Infringed" ...How does it get more clear?

Now lets look at Oath of Office

To Uphold and Defend the Constitution,against all enemies, foreign and domestic....

How can the Senate,in good faith,even consider approving any official who has spoken against provisions of the Constitution?

 

[DaleA]

How can the Senate,in good faith,even consider approving any official who has spoken against provisions of the Constitution?

Gimme an-'H'
Gimme a---'Y'
Gimme a---'P'
Gimme an-'O'
Gimme a---'C'
Gimme a---'R'
Gimme an--'I'
Gimme an--'S'
Gimme a---'Y'

Them and the main stream media ESPECIALLY Public Broadcasting!

Also don't forget these old sayings:
The hypocrisy of their position is breathtaking!
If it wasn’t for double standards they wouldn’t have any.

 

[Metal god]

Here comes the appeal

All the talking heads held a news conference today stating among many things there plan to appeal the recent AWB lawsuit .

https://www.youtube.com/watch?v=UP3XIO1sN_U

 

[44 AMP]

of course, they're going to appeal, but what can they use for an argument?

"We want it back because you have been letting us get away with it since 1989??"

The majority of the Judge's ruling relied on the obvious fact that the state's claimed justification has proven false over the past 30+ years. The guns are not what the state claimed they are, and the state cannot provide any real facts showing any public benefit from their regulation and ban.

It is exactly as he described it, a failed experiment, one which has infringed on the rights of law abiding citizens for no discernable public gain.

 

[ghbucky]

How can the Senate,in good faith,even consider approving any official who has spoken against provisions of the Constitution?

There was a time, within my memory, when elected politicians worked in good faith to enact the will of the voters. The minority party took it as a given that the public put them in the minority on purpose, so they worked with the majority to enact the policies that they ran on. They would of course try to compromise to represent their interests, but it was done in (mostly) good faith.

Those days are gone, maybe for good. Now it is just brute force will to power with no interest in what the 'other side' wants.

The actual spoken motto of the opposition to Trump was "by any means necessary" and they meant exactly that.

 

[LeverGunFan]

All the talking heads held a news conference today stating among many things there plan to appeal the recent AWB lawsuit .

https://www.youtube.com/watch?v=UP3XIO1sN_U

I only watched a few snippets of the video, but I guess I shouldn't be surprised at how the Giffords spokesperson was a key part of the press conference representing California. Image the national hue and cry if a Pro-2A politician conducted a press conference with the NRA (or SAF or FPC) having a prominent speaking role. I doubt that Giffords organization has more than a handful of members, so California is essentially farming out their legal strategy to Michael Bloomberg and a few of his high dollar friends.

 

[Metal god]

Here is a interview with Chuck Michel , his office represents a couple of the cases in front of judge Roger T. Benitez regarding the 2nd amendment . Very interesting insight as to what's going on at the 9th .

https://www.youtube.com/watch?v=mZpz84TLOO0

He brings up this case is actually behind another AWB case ( Duncan ) already awaiting a decision of a an-banc panel . Which means if they strike down that case which does not have as good a ruling behind it as Benitez's ruling . It would just make his ruling moot and as if it never happened .

In the interview Chuck talks about how he believes the 9th should stay all 2nd amendment cases until the the SCOTUS hears the NY carry case in front of them now . His thinking is that the SCOTUS will likely give guidance on what scrutiny pending and future cases should use in most 2nd amendment cases .

That got me thinking if the 9th thinks they have the votes to strike down Duncan , they will before the SCOTUS rules on the NY case . Which will create precedent for all the cases log jammed at the 9th and allow they to strike them all down before next years ruling at the SCOTUS on the NY carry case .

That said as chuck points out the 9th is now more equally divided and the en-banc panel in Duncan may actually vote in our favor . If the 9th sees that as a real possibility they may want to stay all the cases and wait for guidance from the SCOTUS next year .

Anyways I found the interview thought provoking .

 

[Tom Servo]

In addition to that point, if you are licensed in any state to drive a car, you can drive a car into any state you darn well please to.

The problem with the car comparison is, drivers' licenses are honored across state lines because of something called the Drivers' License Compact. It's not for constitutional reasons.

The Compact facilitates sharing of licensing information between states, which means a database of drivers. If we apply that parallel to gun rights, we'd be accepting a national database of firearms owners, and nothing good comes from that.

Moreover, while every state has to accept licenses issued by other states, they can define traffic laws as they see fit. The speed limit on I-90 might be 70mph in Ohio, but if you cross the state line and Indiana decides it's 45, they can do so. Individual states can restrict what kinds of vehicles they allow on roads, they can levy tolls, and they can even shut down the roads. If we imagine a 50-state gun compact, we can see how some states would simply put up roadblocks to make the carry of guns extremely difficult, if not dangerous.

 

[Metal god]

correction

I need to correct something in my last post . It "was" my understanding that the Duncan case awaiting an en-banc decision was a AWB case but it is not . It is a magazine capacity case and is in fact one of the cases judge Roger T. Benitez did hear and ruled in our favor . Also the en-banc panel has not heard the orals yet . In fact they are to be heard here late in June .

 

[LeverGunFan]

To the surprise of no one, the US 9th Circuit Court of Appeals has granted an indefinite stay in Miller vs Bonta. More information at this link.

 

[Metal god]

I was going to give an update but thought this video explains it best
https://www.youtube.com/watch?v=KSANQImSBtU

. It turns out the stay is pending two other cases that are already at the 9th circuit . Rupp vs Bonta and Duncan vs Bonta . It's funny how they word all these stays . Miller ( this case ) is stayed until Rupp ( AWB case ) is final and Rupp is stayed until Duncan ( a standard cap mag case ) is final . So when Chuck michel said we are waiting on Duncan he was right but I would have never guessed it was such a convoluted wait haha . I was wondering how a high cap mag case would settle the AWB case and now I know .

FWIW Duncan had there oral arguments today with the 9th's en-banc panel .
Here is the video of that proceedings
https://www.youtube.com/watch?v=faP79PUMUG8

 

[Metal god]

Just watched the en-banc orals on Duncan . Can someone explain why it appears all 2nd amendment cases out of the 9th right now appear to be waiting on that case ? It would seem to me the court would want to finalize one of the AWB cases . I'd think that would make it clear what the other AWB case is and if magazines able to hold more then 10 rounds is ok . If you can have "assault" weapons , clearly you can have the standard mags that come with them .

Turn that around and lets say they find in Duncan ( mag restrictions ) that you don't have the right to have a mag that holds more then 10rds . OK so ... that does nothing to clear up if "assault" weapons can be banned or not . Why does the court have everything riding on Duncan ?

 

[natman]

Turn that around and lets say they find in Duncan ( mag restrictions ) that you don't have the right to have a mag that holds more then 10rds . OK so ... that does nothing to clear up if "assault" weapons can be banned or not . Why does the court have everything riding on Duncan ?

Most of the arguments in Duncan are the same as the arguments in Miller (I haven't read Rupp, but I expect it's also true for it). So once they've settled Duncan it will save a lot of time in Rupp and Miller. There's no point in arguing similar cases at the same time.

In other words once the Ninth has spewed out some convoluted logic to explain how "in common use for lawful purposes" doesn't mean what it says, they won't have to do it again for Rupp and Miller.

 

[Metal god]

Most of the arguments in Duncan are the same as the arguments in Miller (I haven't read Rupp, but I expect it's also true for it).

I wouldn't think so but after watching that en-banc in Duncan I'd have to say yes . Only because our lawyer made the argument more then once . That the magazine and the rest of the firearm are the same thing . You can't ban one without it effecting the other . I still don't think a mag capacity restriction is the same as a out right ban on a complete class of firearms . I just don't see how they get there but I'm sure they will . I read somewhere based on a dem vs Rep appointed judges "we" have a 4 to 7 disadvantage with the 11 judges that just heard the Duncan case

There was one analogy she made that I thought was good when talking about modifying the mag you have and how the government thinks as long as you still have the mag they didn't infringe on the right . She come back with something like " It's like having two houses and the government makes you tear down one . Why should you complain you still have one of the houses to live in "

What might have been better would have been saying Ok you have a 5 bedroom house and the government makes you seal off two bedrooms and one bath . You still have most of the house so why complain ?

 

[natman]

There was one analogy she made that I thought was good when talking about modifying the mag you have and how the government thinks as long as you still have the mag they didn't infringe on the right . She come back with something like " It's like having two houses and the government makes you tear down one . Why should you complain you still have one of the houses to live in "

I like Benitez's version:

But describing as minor, the burden on responsible, law-abiding citizens who may not possess a 15-round magazine for self-defense because there are other arms permitted with 10 or fewer rounds, is like saying that when government closes a Mormon church it is a minor burden because next door there is a Baptist church or a Hindu temple.

Banning a weapon that is commonly used for lawful purposes is unconstitutional. The existence of alternatives doesn't change that.