How can California outlaw possession of magazines...

[Skans]

How can California legally outlaw the possession of large capacity magazines which were legally purchased and owned, without either:

1. Grandfathering the existing magazines;
2. provide some sort of "free" registration scheme of existing magazines; or
3. paying people for them?

I see no difference between magazines and say cell phones. Can California (or any state) outlaw the possession iPhones the same way they are doing for magazines?

 

[csmsss]

Under which California or federal law or statute, or Constitutional interpretation, would you judge this ban as illegal/unconstitutional?

 

[Skans]

I would think the US Constitutional provisions of Due Process would prohibit such a confiscatory taking of personal property. Especially when it is not necessary and a registration process can accomplish public safety goals.

 

[pete2]

The state can get away with anything that the citizens of the state allow. Citizens have more power than they use sometimes. Same applies to the federal gov.

 

[pete2]

The state can get away with anything that the citizens of the state allow. Citizens have more power than they use sometimes. Same applies to the federal gov. They can only do what we allow them to do.

 

[Frank Ettin]

I would think the US Constitutional provisions of Due Process would prohibit such a confiscatory taking of personal property. Especially when it is not necessary and a registration process can accomplish public safety goals.

Why would you think that? Can you support your view with applicable legal authority?

People think a lot of thing are true that aren't true -- especially, it seems, with regard to legal matters. And unless you reached your conclusion based on a sound understanding of the law and some solid research, there's an excellent chance that what you think is true isn't true -- unless you managed to make a lucky guess.

Most people really don't understand the law because they have not studied it. And to understand the law, one needs to actually study it. Much in the law is non-intuitive or will make sense only when one has sufficient background knowledge. You can't expect to be able to figure out what the law is or how it works just by trying to "reason it out."

 

[Aguila Blanca]

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Outright declaring existing magazines as contraband without either a grandfather and/or registration provision or a compensation provision would certainly seem to run afoul of the fifth amendment. The State's argument in rebuttal would probably be that they didn't "take" anything, the owners are still at liberty to sell the contraband out of state.

Australia bought the guns they outlawed ...

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/takings.htm

 

[Frank Ettin]

Outright declaring existing magazines as contraband without either a grandfather and/or registration provision or a compensation provision would certainly seem to run afoul of the fifth amendment. ...

Confiscation of contraband is not a taking for public use for which the Fifth Amendment requires compensation.

 

[Aguila Blanca]

Confiscation of contraband is not a taking for public use for which the Fifth Amendment requires compensation.

If not, then what is it other than theft under color of law? If my magazine cost me $25, and the state decides tomorrow that it's no longer legal for me to own it (it was legal when I bought it and it's legal today) so I have to surrender it or destroy it -- I'm out $25. How is that any different from sticking me up at gunpoint and stealing $25 out of my wallet?

 

[44 AMP]

How is that any different from sticking me up at gunpoint and stealing $25 out of my wallet?

because you're not allowed to shoot back???

yes, we consider it theft, they DON'T.

Due process?? sure, they passed a bill, in accordance with legislative rules, the Gov signs it, it becomes a law. That's all the due process we need, or get, as far as they care.

They (meaning various groups in govt.) have done it before, and not just with guns or related things.

Got a prohibited weed growing in your back yard? You'll be lucky if they don't confiscate your freakin HOUSE.

own gold? sorry, you have to turn it in to the govt. (unless its jewelry or you are a registered coin collector - yes, that WAS the law in the US during the FDR years)

Do you think the govt PAID for any of the booze they confiscated during Prohibition??

The govt can get away with anything, until the govt stops itself. ANYTHING can be passed as law, and IS law, until the appropriate court (another branch of govt) declares it is not law.

The base reason why they can get away with banning X, Y, or Z and taking it from us, is that we GAVE them that ability, and we don't do enough to regulate it.

And, consider this, you are under no legal obligation to stay in CA. You can move. Practical matters like cost, work, home, family, etc., don't matter, you are not legally prohibited from moving, so you don't HAVE to put up with the law, you can go elsewhere, and the people who pass these kind of laws will be happier if you do. As long as you are not legally forbidden from moving away, they don't feel your rights are being violated. IF they even bother to consider that...

In their view, the choice is YOURS...

the fact that you may suffer great personal hardship, even financial loss in order to move is just your tough luck to them...

While I no longer remember the details, I do remember a story from the days when CA first passed their assault weapons laws, and because of the location of the magazine, Olympic target pistols were banned under the law. (there has since been an exception made for them, but at the time they were banned)

There was a teenage girl who lived in CA, an Olympic hopefull (or on the team, I forget) she contacted her legislator(s) about getting an exemption, so she could train and practice. The response she got was essentially "if you don't like the law, move!"

they'll get away with it, until they are either removed from office, or a court declares the law invalid.

I can no longer remember who said it, (and I'm not going to do a search), but I do remember reading it many years ago...

"America is at that awkward stage, its too late to work within the system, and too soon to start shooting the bastards.."

I believe we are still there....frustrating though it is.

 

[Skans]

Why would you think that? Can you support your view with applicable legal authority?

Frank, I'm simply asked a question - looking to learn a little here. Someone asked under what law would I think this could be illegal - I replied.

Confiscation of contraband is not a taking for public use for which the Fifth Amendment requires compensation.

The provision that Aguila quoted does not seem to be limited to takings for public use. If that were the case, then the government can ban and take away anything, so long as it doesn't use it. This is what I'm questioning - I don't know the law on this and was wondering if there are any examples either firearms related or with regard to other types of property?

Do you think the govt PAID for any of the booze they confiscated during Prohibition??

I don't know how they handled existing booze. Regardless, prohibition was a enacted by Federal Constitutional Amendment. Perhaps its implementation was contrary to other Amendments and I don't know how or if that was reconciled by the courts.

 

[ATN082268]

I can no longer remember who said it, (and I'm not going to do a search), but I do remember reading it many years ago...

"America is at that awkward stage, its too late to work within the system, and too soon to start shooting the bastards.."

I believe we are still there....frustrating though it is.

This quote made my day Thank you. I did a search and came up with:


https://en.wikipedia.org/wiki/Claire_Wolfe

 

[g.willikers]

Democracy in action, at it's worst.
Our government was designed as a Republic based on ideas of individual rights and equal protection under the law, but has deteriorated into a democracy, mostly due to the lack of diligence by us, the citizens.
As the ancient Greeks quickly discovered, anything goes with a democracy as long as enough people want it.
Ask just about any kid in our public school what kind of government we have and the answer will rarely be "A Republic."
California is merely an example of the results.
So, it can hardly be surprising.

 

[doofus47]

g.wilikers

Our government was designed as a Republic based on ideas of individual rights and equal protection under the law, but has deteriorated into a democracy, mostly due to the lack of diligence by us, the citizens.

Too true. I had the privilege of listening yesterday to a conference call with Barbara Boxer.

Total disclosure: I didn't vote for either of the "big two" and was prepared to be some flavor of unhappy on Weds morning either way.

First of all it was refreshing to hear the !% talking openly about how little the problems of the manufacturing industry in this country really matter to the national economy. I know now where I stand: firmly outside the rarified air.

Second, the esteemed 5 term Senator from California was bemoaning the results of the Presidential election as her pick won the popular vote but lost the electoral college vote. She thought that the Constitution/Electoral College system needed to be changed so that the results of the Presidential election would fall in line with the popular vote.

Take aways:
1. You can be a longstanding member of Government and still not know how the government works.
2. You can be old and experienced and still not be wise nor have perspective.
3. Some people really just don't care about anything or anyone except their interests. Sometimes these people are in places of power.
4. Losing doesn't mean you have to learn.

 

[44 AMP]

1. You can be a longstanding member of Government and still not know how the government works.

While this is true, in Boxer's case, I think she knows quite well how Government works, she just doesn't AGREE with it, when HER choice of fuehrer didn't win.

Did you see her saying abolish/change the Electoral college when Obama won?
I didn't.

 

[Aguila Blanca]

The provision that Aguila quoted does not seem to be limited to takings for public use.

The constitutional provision I cited specifically says "for public use." And for 200+ years everyone knew what that meant. Then along came Kelo v. City of New London, 545 U.S. 469. What Kelo effectively did was make it so a "public use" was anything the government said might be a "public" benefit.

For those who might not know or remember the case, it involved the city of New London, Connecticut, wanting to take through eminant domain a neighborhood in the city so that a private, for-profit developer could build some upscale project that hinged on an expansion pf Pfizer Chemical's presence in New London. In other words, the city wanted to take the property but NOT build anything on it. No roads, no school, no new city hall, nothing. Their intention was to turn it over to the private developer. "So where's the public use?" you ask. And therein lies the sticky wicket -- the "public use" was to have something built that would generate more tax revenue to the city. To its everlasting disgrace, the Supreme Court bought into this logic, and allowed the City of New London to condemn the neighborhood and take the properties.

http://www.weeklystandard.com/kelo-revisited/article/776021#!

The result?

http://www.nationalreview.com/article/370441/nine-years-after-kelo-seized-land-empty-alec-torres

So the question of what constitutes a "public use" has been badly muddied by the Kelo decision. Today, there seems to be no limit on what a government entity can claim has a "public use." But ... Kelo didn't invalidate the principle that "takings" must be compensated. Which is why IMHO (as a non-lawyer) making existing, legally-owned property unlawful to possess is not a lawful act. It's a de facto confiscation and, as such, should be compensated at fair market value.

If you can find Sandra Day O'Conner's dissenting opinion on Kelo -- read it.

Wikipedia summary: https://en.wikipedia.org/wiki/Kelo_v._City_of_New_London

 

[Skans]

Actually, Aguila, there are two different parts to the constitutional language you quoted. One part does deal with the taking of private property for public use. It is not this part that I am focusing on. The preceding language to the part that you are referring to is what I am focusing on:

... nor be deprived of life, liberty, or property, without due process of law...

This part seems (I could be wrong) to prohibit the government from depriving you of property without due process of law. Passing a law saying you can't have something is not "due process".

Also, even when prohibition was enacted, private possession of alcohol was not outlawed! You could no longer produce consumable alcohol or sell it. So, it would seem that making the ownership and possession of a 50 round drum magazine illegal and forcing you to relinquish this item is deprivation of property without due process of law.

 

[Aguila Blanca]

This part seems (I could be wrong) to prohibit the government from depriving you of property without due process of law. Passing a law saying you can't have something is not "due process".

It isn't?

 

[WeedWacker]

It isn't?

Aguila, I'm guessing your angle is representation leads to due process, correct?

If so, I posit two scenarios to consider.

First, that an individual moves from out of state into, say, California and does not meet the requisite legal requirements to be counted as a resident at the time of an election for representation (i.e. there is no option to voice a preference for who would represent said future citizen). at the time of this relocation into the state, this citizen brings items which are legal. Shortly after this election the Governor signs a bill that makes an item illegal and the government subsequently seizes the property. Have we had due process provided to this citizen?

Second, same scenario except the citizen arrives after the election and perhaps a few days before the ban on items. I feel this might be more cut and dried and would be recognized in the courts as a case for more lenience should the seizure be upheld.

I'd like to also point back to the text of the 5th amendment for something I noticed along with Skans:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

(See highlighted above)

I notice the clauses separated by the semicolon with "nor" setting them apart distinctly as different requirements and thoughts.

nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

If a bill is created that makes something illegal and leads to confiscation the only way to invoke this part is to refuse to comply and be charged to create a criminal case, correct? If so, confiscation is provided for outside "public use" and as such would be "highway robbery" without due process unless the citizen refuses and a criminal case is brought which allows the start of due process and the citizen's day in court but with pending criminal charges.

As evidenced, I'm not a lawyer. Like Skans, I'd like to learn something new.

 

[LavaTech]

Well, I'm not a lawyer but aren't we discussing ex-post facto adjudication? The Constitution already provides for that, it's felonious.

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