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How can California outlaw possession of magazines...
- Thread starter Skans
- Start date
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.
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
Administrator
Let's steer thread away from "General Politics" and back to the topic raised by the OP, please.
vranasaurus
New member
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:
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:
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.
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.
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.
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
Administrator
No, I'm afraid that the constitutional prohibition of expost facto laws doesn't help. These sorts of bans aren't considered expost facto.CowTowner said:...is there not something called "expos facto" which might also be included in a challenge to this ban?
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.