California’s 4th District (Division 1) Court of Appeal just held that the Second Amendment does not apply to semi-automatic firearms like “AK” platform rifles. Click here to read the decision. “We construe Heller as standing for the proposition that the right secured by the Second Amendment is ‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose’ (Heller, supra, 554 U.S. at p. 626), but is instead the right to possess and carry weapons typically possessed by law-abiding citizens for lawful purposes such as hunting or self-defense . . . We agree with James that the ban on AK series rifles does not impinge on rights protected by the Second Amendment because assault weapons ‘are at least as dangerous and unusual as the short-barreled shotgun’ (James, supra, 174 Cal.App.4th at p. 677), which Miller concluded (with apparent approval from Heller) was outside the scope of the Second Amendment’s guarantee. (James, at pp. 674-675.)”
Would a non-biased lawyer please examine the fruit salad of verbiage in this ruling and offer a reasoned response? I’m aghast at the slant in the ruling.
Well. first of all, Miller did not say that. The Miller Court basically held that without record evidence that the short-barreled shotgun had some utility for a militia purpose, the Court could not hold that the prohibition violated the Second Amendment. The Court said:
“In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”
That evidence was not in the record because the lower court had dismissed the charge on Second Amendment grounds. The Miller case was procedurally bizarre and that resulted in a bizarre form of ruling. The case was handled by court-appointed counsel, who asked that the case be submitted on the government’s brief alone and neither briefed the argument nor appeared to argue the case at oral argument. Miller himself was killed before the ruling was handed down.
The fact is that short-barreled shotguns had a demonstrable military history in WWI in regular use to clear trenches, and there would have been no lack of such evidence had it been competently tried.
As to the militia utility of the AK platform there is no lack of evidence from all over the world.
So as I read the decision the Fourth District Court of Appeal is making conclusions on a 2A matter from a construction that 2A only applies to militias, not individuals, correct?
That would violate /Heller/, would it not?
Fourth District First Division is San Diego–San Diego and Imperial county. The judgment that an AK might not be the best tool for defense in that part of the world strikes me as oddly out of touch.
https://oag.ca.gov/news/press-releases/brown-announces-convictions-31-mexican-mafia-gang-members-extortion-and-drug
So, Mead, in your view exactly what is going on judicially here? Judge Robert F. O’Neill was not paying attention to SCOTUS…or is willfully ignoring it…or that he’s currying favor with Kamala Harris in Sacto (CA AG and in her earlier incarnation a devout San Francisco anti-gunner)…or what? Is it an outbreak of stupid, or a judge shoving a piece of drek somewhere else, using a convenient PR strategy going into next election year?
Or is it using a drekky case to try to be the one to establish the El Dorado of the anti-gunner: once ONE kind of gun is outlawed by type, the others will follow?
So, where does any part of the 2A say anything about ‘defense’. It only says “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”.
It states, ‘the people’…that is US citizens. It also states ‘Arms’, capitalized. Look it up in any dictionary from that time period. Arms refers to weapons of offense.
Now, knowing the truth, who in their right mind can ‘rule’ any way to limit arms. I also contend that full automatic weapons are legal. Citizens must stand up and protect our fundamental document. It is being trampled. If it goes, so do ALL of your other freedoms. If you don’t like the 2A, then change it….otherwise, sit down, shutup, and follow the LAW.
They were careful to point out that they weren’t addressing the ban on certain types of weapons. Antonin Scalia, said:
“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons”
However, I think the ak-47 being the most popular weapon in the world (or something like that) probably deserves a little more respect. Same goes for the ar-15, I don’t know why we can’t get some “gold standard” status for the ar-15, it’s like a national symbol.
Of course it’s no surprise when California makes news like this.
And how can I not use an AK for either hunting or self defense? People use AK pattern rifles for hunting as much as they use AR patterned ones. Look at ivory poachers in Africa. They bring down ELEPHANTS with AKs (and cyanide).
It may seem odd, but I don’t think SCOTUS is concerned with weapons common for self-defense in Africa. Or Japan. Fortunately.
I have hunted hogs with AK’s, if that makes a difference.
An AK is my goto brush gun for deer hunting in NC and now MO. .30 calibre, 7.62×39 soft nose bullets, acurate out to 300m easy, compact enough to handle easily in brush and close forest. How does anybody get that it can’t be used for hunting? And in state’s that require load limits, 5 rnd mags are readily available.
No trigger discipline. Someone should have smacked it out of her hand like I saw a Drill Instructor do once.
^ While she sweeps everyone in the room.
Given who was in the room, the world would be a better place if she’d had a loaded magazine.
Technically that’s fodder for the other side. However, given who was in the room and the legislation they support, such an event could save many innocent children’s lives. If it’s all about saving lives, then wouldn’t anything done to these people “for the cause” be worth it?
(No, overlords, I’m not suggesting anything violent. I’m trying to show a double-standard on their part. They are suggesting something violent.)
Or busted her for possession of an unregistered assault rifle with what looks like a high capacity assault magazine clip and one of those things that goes up against the shoulder.
Those shoulder things are dangerous. Nobody needs one.
What in the hell is a magazine clip???
She’s got her Booger Hook on the Bang Switch.
I totally agree with you. First thing I noticed after reading the headline. She probably sleeps with one under her pillow now that she is so popular. I’ll bet she is a closet gun owner with another agenda.
Ha! That immediately bothered me too! Trigger…Trigger! GET YOUR F#$^#$ FINGER OFF THE TRIGGER!
So, because other courts have held that Heller doesn’t preclude the prohibition of assault weapons, and because a state can define “assault weapon” to mean anything they want it to mean, by extension you could say Heller doesn’t mean anything at all.
As TTAG pointed out at the time, it was something of a Pyrrhic victory.
We cannot count on the courts to see things the right way. We really need to beat this back at the ballot box, electing politicians that know gun control doesn’t work. To do that, we need to win over the uncommitted. Take a neighbor to the range kind of thing. Let him/her read your NRA magazines. Whatever it takes, while being a reasonable person. It will be a long haul in California but it is doable.
Sure.
Replace them with pro gun socialists who giveaway more free shit and I think we will have a winner.
You will never win over the uncommitted until there’s a pro-gun party for which they can comfortably vote without sacrificing their other values. Even if you can convince many people to be pro-gun, I very much doubt that you can convince them that pro-gun is more important than a bunch of other strong opinions (on economy, personal freedom, privacy etc) that they already have.
This will not happen in the existing two-party system. The closest you can get to that is if Republicans are rebooted as a true fiscal conservative party with no (or fringe) social conservative element, rather than touting the latter prominently. Alternatively, if they splinter, and Libertarians take over the right wing. Even then, right-wing take on economy will still be a sore point for many, but not quite as many as the current Republican social conservatism.
Heller was a half measure on its best day.
Or that you can eventually limit peoples magazine capacity because if 10 is super safe and 7 even safer, then why not 5,4,3,2 and finally 1. Even though studies show magazine capacity has no bearing on the amount of people killed in a shooting. It has more to do with time to first engagement with the shooter.
This case holding doesn’t comply with Heller, but for that matter it doesn’t even comply with Miller. The ‘dangerousness’ of the sawed-off shotgun was a secondary criteria in Miller. It followed after the court found that sawed-off shotguns were not basic items used by the military…though times have changed, and now short-barreled shotguns for breaching are common. Certainly the ‘militia of the people’ has had AKs among their common firearms for decades.
There will certainly be decades of fluctuating opinion in the courts. The issue, though, is voting: Republican primary voters extracted from Romney a clear statement not to reimpose an AWB. What happened? Million of conservative voters didn’t bother to go to the polls on election day, 2012. IF there are not two effective parties, your AKs will be the least of your losses. If women’s issues are not more actively supported, there will not be a second effective party. A party platform in a two-party system isn’t a ‘we are you’ love-in. It is a statement of coalition by people who will not agree with each other on every point.
What difference would it have made if Million of conservative voters did bother to go to the polls on election day, 2012. In case you didn’t know the popular vote does not pick the president,. the electoral collage does. It’s a BS show to make people think their vote means something. .
…and the electoral college wins come about because, state by state, a party wins the popular vote. Several states were lost because of low Republican and conservative turnout.
Phil, the electoral college was established in Article II of the US Constitution.
It was designed as a check-n-balance to keep the republic out of the hands of the unbridled /demos/ for all the reasons Plato (and later Mencken) observed.
That may occasionally disconcert people (for instance the fans of Samuel Tilden, Grover Cleveland, and Al Gore), but our system is a representative democracy operating within a constitutional republic.
If you are an anticonstitutionalist, fine, just say that. But in disrespecting the fundamental contract by which our republic works, you are obligated to come up with a better idea. Simply throwing everything into the hands of the mobocracy strikes me as “been there, done that, let’s not go there again.”
The electoral college has nothing to do with “democracy not a republic” (which is a silly phrase, and outright wrong unless your English dictionary is from 1700); it was just a reasonably efficient way of counting votes at the time. It was also a compromise to the slave-holding states, since they got to have electors for 3/5 of the slave population, which would not otherwise vote at all in the direct elections.
Abolishing the electoral college doesn’t result in a “mobocracy”, not anymore so than in any other modern representative democracy. The safeguard against that is that people don’t vote on laws directly, but vote to elect representatives; and also by having a Senate which represents states rather than people directly. Direct popular election of representatives does nothing to change that, except for the fact that the vote of every person will actually be worth the same, instead of the current situation where some states are disproportionally represented.
It’s been a long time since I read the Heller decision, but I seem to recall a lot of time was spent pointing out that the “…well regulated militia…” portion was preamble and that the active phrase was “…the right of the people to keep and bear arms, shall not be infringed.” It seems a BIG stretch, therefore, to base any prohibition of a particular firearm on whether or not it would or could serve a purpose in use by a militia, well regulated or not.
The operative strategy seems to be, if you make something very hard to get, you can eventually claim it is not in common use – machine-gun anyone?
I’m not a lawyer, nor do I play one on TV. However, this strikes me as a situation where a decision was reached in the minds of the judges prior to the case being heard. This certainly appears to be a convoluted opinion to justify a foregone conclusion.
As a lawyer, I have to say that would be the situation with most appellate cases involving highly contentious public policy issues. The opinion is written around the desired end result, with some occasional, pleasantly surprising exceptions.
That noise you just heard was the last of my illusions regarding the justice system shattering…
What does justice have to do with law?
yeah, well, anyone from California can tell you we have a legal system, not a justice system.
It seems a bit harsh to say that appellate judges decide cases before oral argument. It is an appeal. The record has already been built in the trial court, and read by at least some of the judges. The appellate court has briefed the relevant law before oral argument and naturally forms an opinion during that process and in conference, using oral argument to, at worst, offer an opportunity to be persuaded…or not.
There is nothing novel about a state court-of-appeals rendering an idiotic interpretation of federal constitutional law. Having just had SCOTUS effectively impose gay marriage on all the states, I’m hardly amazed by the AK ruling at the state level.
If people do not actively support the redrawing of the Republican Party platform, don’t accept a better balance of issues that allows for a larger coalition, don’t drop “back my issue or I don’t go to the polls,” you won’t be able to keep anything but a six-inch revolver before the left is done. Face it or don’t. Your choice.
Revolvers have too many bullets. You’ll see a surge in double tap sales, though….
“Having just had SCOTUS effectively impose gay marriage on all the states, I’m hardly amazed by the AK ruling at the state level.”
Right, because saying that the government can’t discriminate against you based on who you date is completely the same thing as blatantly violating the Second Amendment….
Ultimately they are the same thing – at issue is whether or not you own yourself, or the State does.
My mention of the marriage issue wasn’t intended to be about LGBT rights, but about judicial neglect of explicit constitutional constraints on government power on one hand, joined to judicial activism in areas worthy of attention, but involving no constitutional right…. just up to the moment Justice Kennedy decides it does. It is, to my perception, a matter of creating rights out of thin air while not bothering to respect the rights explicitly enumerated in the actual document. It seems like a misplaced set of priorities. From a fiscal point of view, and somewhat humorously in light of the gay marriage revolution, the only people now getting screwed are single people. They have to support the tax and insurance subsidies not only of third-marriage childless hetero couples, but gay couples as well. My advice? “Marry something, I don’t care what, just something. You won’t then be getting screwed more, but rather less…by the tax laws.” Specifically it is death-tax laws and health insurance/social security benefits that I refer to. Back to guns…
The same people who are too principled to vote or too willing to vote for a third party candidate are the same people who are often surprised by these rulings and wonder how this can happen. In order to make law, you first need your team in office. Then they can nominate judges who will have more favorable rulings. Yes, there are far too many that on principle are happy to allow all their rights to be taken away.
That is patently absurd. If I am surprised at a ruling on a particular issue (which i am not), the solution isn’t to vote for a “team” I’m not on, so they can nominate judges that will also surprise me with rulings on other issues i don’t agree with.
Blame the inability to elect your “team” on your own team and rid yourself of the delusion that everyone who doesn’t vote democrat owes a republican a vote.
The courts didn’t impose gay marriage but said that states can’t discriminate. religious freedom isn’t the same as theocracy. My take is the government shouldn’t even be involved with marriage, hetero or homosexual, or even polyamorous or by monogamous. It’s neither the government’s business who loves who, or how many, or if there is any love at all. Nor is it the government’s place to tell people what is or isn’t sanctimonious.
This is probably gonna get me raged at but, this is just rewards for allowing the system to become corrupt and bloated. We have elected officials, including trigger happy feinstein there, telling us with no uncertain terms that they have not only violated the constitution, but intend to continue doing so with out repercussions. The CO recall should have been just a start with feinstein and obama administration sitting in jail (the poor people prison to boot).
Voting republican won’t fix anything as neither party really seems concerned for the constitution as a whole. I’m just as much at fault as the next as we’ve too often chose the lesser of two evils for many generations and what should be no surprise is that we are now mired in a political system with nearly no redemption. It’s corrupt because the base is. People cherry pick the constitution or show outright apathy.
HE HAS STEPPED OUT OF THE TWO-PARTY BOUNDARY!
two-minute hate – COMMENCE!
*Glare*
Bravo +1000
I voted McCain in 08. I severely regret it(I was 18 and voted for who my parents voted for), but I have since gone libertarian, and hearing republicans get mad that libertarians(in particular) didn’t vote for Romney is getting old. Why did he deserve our vote? He did not stand on principle, and he was a smidgeon to the right of Obama. It’s tribalism at it’s worst. If you keep voting for moderate candidates without principle, that’s what they(the GOP) will continue to give you. They should earn your vote. They aren’t entitled to it just because they wear a red button.
@Andrew
I’d like Obama much more if he had a creepy authoritative stare and a praiseworthy mustache. BB fo’ eva!
@Evan,
Exactly. Pledging allegiance to the tribe not the constitution. As long as we cherry pick the issues that are important to us we’ll be in a quagmire of bullshit. That’s the good and bad about the constitution, it protects not only the things we like, but the stuff we don’t as well. A person doesn’t have to like what their neighbor does, whether they worship or not and what they worship, whether or not they are armed, and etcetera, just that they have a right to as long as they don’t violate the rights of others.
When did the pursuit of happiness and freedom of the people and government for the people by the people turn into a hollow shell ran by people who’s lust for control consumes and help plunge this nation into turpitude. Don’t get me wrong, I don’t think the start of the U.S. was some glorious birth of Kim Jung Il style utopia, but at least they had an overall good concept of what was to be freedom for people (except of course anyone who wasn’t white, would have been nice if they had included that from the start).
Your thought process on gay marriage is what Thomas Sowell calls “Stage 1 thinking”. If you want to be challenged in your ideas then seek out articles from Dennis Prager (BTW, he was one of only two outside persons invited by Republicans to advise congress on the DOMA legislation.)
@smackit
There may be ramifications if government left marriage to the people, as there are consequences of it being involved already. It arbitrarily denotes who gets special treatment from the government, in some cases criminalizes the activities of others and goes into a weird realm that it has no business treading. Divorce and all the bad nonsense involved, marriages of convenience, overly complicated tax laws all mean more red tape quagmires to add to society’s expense and suffering.
Plus what about hermaphrodites? The people who have both innies and outies for genitals? Are they just SOL? Or do they just have to pick a hole to suit the desires of an arbitrary set of laws and people? What about the transgendered? Especially when medicine can do more than just mutilate their fuzzy bits and actually do full scale conversion? I say, stay out of it. Let the people deal with it on their own, and leave the usually dysfunctional government out of as much as humanly possible.
Read a few articles with the limited time left I have and didn’t find Prager a good read. I found his premises silly and his arguments flawed. He tries to pretend that there are secular reasons to not allow gay marriage which is complete bullshit. His appeal to authorty in one of his articles is revolting. The why if no great thinker blah blah blah. As if a good idea hinges on whether or not someone he tolerates/likes from yesteryear thought of it first. As if their stance could be used as support for a moral argument. He also tries to appeal to tradition as if that’d make his vapid argument any stronger.
Anyhow back to good ole gun talk. Our gun rights should not hinge on a preconceived notion that we need their permission. The whole system was supposed to be that THEY (yes capslock) need OUR permission to do anything. Makes absolutely no damn sense to give the people who the 2nd amendment alludes to the regulatory rights of how well we are armed to remove them. An employer pretty much never gives the employee the options of how they can be fired unless they are made to by force. Politicians are our damn employees. Service with a smile and adhere to the damn rules or get the hell out!
Brilliant, redefine the definition of marriage that has been around for thousands of years so you can feel good about yourself for accommodating hermaphrodites which occur approx 1 in every 100,00 people. BTW, hermaphrodite have been accommodated for centuries by declaring themselves one sex and marrying the other.
Well I tried. Maybe you’ll learn something when your middle school daughter comes home and tells you that her teacher asked her if she was going to marry a boy or girl when she grows up and the idea sounds intriguing.
Doesky2, if your middle school daughter is converted to lesbianism by a simple question at school, guese what. She was already thinking of joining the team. Even a crusty old OFWG like me knows gay ain’t a conversion. You either are or you ain’t.
doesky, and if she decides that she wants to marry a girl after all, what are you going to do? Spank her? Lock her up? Tell her to kneel on peas and recite Hail Mary all night?
This just proves that you should never follow what the courts decide any more when it comes to guns. Government is corrupt through all branches and real patriots need to look at the plain and simple language of the U.S. Constitution for true guidance. If they get their way, we will be like England and subject to their changing desires without “True” veto power.
Not just guns.
I am looking into the background of this case. This may have been either a firearm on the Roberti-Roos roster ( http://en.wikipedia.org/wiki/Roberti-Roos_Assault_Weapons_Control_Act_of_1989 ) or one without an AK equivalent of a Bullet button:
http://i59.photobucket.com/albums/g302/impactco/duraglock.jpg
or this:
http://www.riflegear.com/images/product/large/554_2_.jpg
That is certainly how it reads, but to make matters worse the court used unnecessarily broad language, as other AK variants are perfectly legal in the state as long as certain modifications are present.
So my Saiga in .308 can’t be used for hunting? This is utterly bogus. Wasn’t miller about weapons not suitable for militia service? An AK could definitely a weapon suitable for militia use. California courts are jacked the hell up.
Its important to remember that in California, there are extra requirements such as the bullet button or an outright ban on specified models, as listed on the Roberti Roos Roster… This case held that since the AK was one of the specifically identified models on the roster it is to be considered an assault weapon, and although similar in function to one that is not “banned”, was not subject to protections of the 2nd Amendment.
Exactly. The case ultimately raises the question “what can be on a Roberti Roos state roster?” We’re years from getting the ultimate answer.
This should make AKs cheaper in Nevada awhile, right?
“California is jacked the hell up.”
FIFY.
35 years later, I’m still pissed at Christopher Reeve for stopping California from falling into the ocean.
http://www.news.com.au/world/north-america/are-californias-giant-dead-oarfish-a-sign-of-an-impending-earthquake-disaster/story-fnh81jut-1226744930564
This appears to be a misinterpretation and distortion of the Heller-decision…
Calling it a misinterpretation implies this was unintentional. Make no mistake–this is the ruling they wanted from the start. They had their minds made up before the case ever reached them.
No, Heller essentially paves the road for this type of opinion. As an attorney, I read Heller and said “Oh shit.”
In case you missed the key paragraph, here it is again:
“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.”
It wasn’t a weakness of Heller to include the language you quote. But plainly it is error for the CA Court of Appeals for the 4th Jud. Dist. to enter into comments as to dangerousness rather than reaching evidence-based conclusions as to the extent which semi-automatic carbines are owned for self and home defense, which SCOTUS elsewhere adjudges to be within the 2nd Amendment. The CA Court was therefore duty-bound to review the existence and nature of the Ricardi Roos list itself, the formation of which preceded the Heller (and MacDonald) opinions. The court shirked its duty for political convenience, certainly. If it had been attempting to reconcile Heller with CA law, reviewing the definition of assault weapons in CA law was mandatory, for Heller does not construct a 2nd Amendment analysis that concerns the dangerousness or political hostility to the appearance of a weapon. All weapons are dangerous.
Heller rests the ground of the right on defense of self and home in support of state, or alternately to protect against state tyranny. What arms are commonly kept for those purposes is the only question for the court. Certainly AKs are not banned as ‘dangerous and unusual’ in the way that SBSs are, a bit of evidence that they are indeed not uncommon for the purpose. The sales of ARs and their widespread possession argues for their protection. Singling out the AK, though it is just another carbine/rifle, seems arbitrary, as if they were to ban Norinco pump guns, but not those of Remington.
SCOTUS, Heller v. United States at 52: “We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.”
SCOTUS has been wrong before, flat out wrong, and they are wrong this time as well. Like the CA appellate court they tried to dance around the issue or whether or not the 2A means exactly what it says by claiming the Heller decision was narrow in scope and that they couldn’t look at the over-all merits of the amendment. If we cannot get any better results from this (nominally) conservative court, heaven help us if BHO gets a nominee.
The Second Amendment is short and sweet and unambiguous. There is nothing in there giving ANY branch of the federal government, or any government, for that matter, the power or authority to decide WHAT arms may be kept, WHO may bear them, or WHERE. Any other conclusion is political grandstanding and to conclude that just because the SCOTUS has decided something is Constitutional (Roe v Wade, Dredd Scott, etc.) does not mean that they are right, only that there is no other branch of government that can tell them to pound sand.
It is a truth of American life that the documents of liberty have always lived within a reality of class power. Even the founding fathers expressed through their own actions support for gun rights, but only so long as the peasant farmers of western Massachusetts didn’t actually take up their guns to oppose foreclosure, oppose the demands of Boston bankers (many of them returning royalists) to be paid in gold on farm mortgages, despite a general knowledge that there was little gold available in the state, and that revolutionary war wages had not yet been paid. Shay’s Rebellion. The coastal city merchants (Hancock and others) were enthusiastic to throw off the British yoke if it threatened their trade. They wouldn’t tolerate, however, peasants threatening their finance. Note that there was no “Shay” attempting armed revolt when the recent Great Recession saw land and house owners dispossessed, while the bankers doing the foreclosing were handed hundreds of billions “to tide them over and keep the financial life blood flowing.” The more things change, the more they stay the same.
@ Ropingdown: You lay out the Pro-2A argument quite well. I hope your (our) view ultimately prevails.
This will go to the Supreme Court. Heller said weapons in common use. AK’s are very much in common use.
Better vote Republican. One more “D” on the Supreme Court and you can count on a decision supporting a ban of AKs and ARs.
Right where would we be without the rock ribbed conservatives that the Republicans have appointed, like O’Connor, Kennedy, Souter, and Roberts. Don’t forget Burger, Blackmun and Stevens from the late 60’s and early 70’s.
Truly a quandary. The list of Republican appointees seems dreadful from a 2nd Amendment point of view….just up to the moment you look at the list of Clinton and Obama appointees.
Its true that some of the Republican appointees have been disappointing. Others have been solid. However, if you like the Second Amendment, voting Republican is the only clear choice, esp, with the increasingly hard-core socialist / commie brand of leftie Democrats that seems to be in vogue these days.
SCOTUS has been turning down cases in things with much higher precedence and much more disagreement between lower courts (ie may vs shall issue)… I wouldn’t hold my breath.
First it has to get to and passed the California Supreme Court, and while there are some very bright people on that court, it is heavily liberal. So far it has not been favorable to expansions of 2A rights, which is why all firearms litigation here is brought in the federal courts–we pretty much know what the state courts will do, and there is no point in wasting time fighting losing battles.
Will it get to the Supreme Court before the balance shifts in the wrong direction?
Not likely.
AEnma by Tool. That’s all I have to say about California.
+1000
I was hearing “Prison Sex”, but that will do as well.
Wow, did they ever get Miller wrong… It was never concluded that a short barreled shotgun was not protected by the second amendment! It was concluded that since it was “not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense,” that the case was remanded back to district court for further proceedings. As we all know, short barreled shotguns were in fact in ordinary military use in WWI, as were full auto weapons and SBRs. Miller was dead by that point, and his co-defendant Layton took a plea deal to avoid prison time, so it was never addressed, and we all got the shaft.
The original court (where that judicial notice would have been given) declared the law unconstitutional without hearing any testimony, which is why SCOTUS didn’t have, and couldn’t accept that judicial notice. The Miller ruling said:
“The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”
So they certainly left it open that it might be protected, but that they were not in proper possession of any knowledge to say otherwise.
Nice analysis.
Thanks for that. I learned stuff.
There’s a really good discussion on this at the Volokh Conspiracy:
Why United States v. Miller was so badly written
What I left out was that neither Miller, Layton, nor their counsel ever appeared in front of SCOTUS, so it was argued completely one sided…
SCOTUS itself pointed out (at 52) the weakness of Miller as precedent, as it answered what the majority felt were errors in Justice Stevens’ dissent. The question of “what weapons are included within the protections of the right” will never be settled with finality. The CA Ct of Appeals simple erred in moving into an inapplicable ‘dangerousness’ argument, when Heller should have caused them to enter into a ‘commonly held for self and home defense, and defense of the state and people against tyranny’ argument. That required the court not to assume the CA Assault Weapons Ban, Ricardi Roos lists, but to question their legitimacy in light of Heller. In this the CA court failed. AR’s and other semi-automatic carbines and rifles were common enough for the purposes, more so before the ban. Magazine-fed carbines were common until the ban, are very common in many other states, and dangerousness is irrelevant. All common weapons are dangerous.
Nothing done or said by a Kalifornian court surprises me nor does it affect me.
So in a word screwem……….po po folks in Kalifornia and so it goes.
State Supreme Court may be next. If they reverse, it’s off to the ninth circus court (pun intended). The 9th reverses more decisions than any other. Then unless people get tired or run out of money, the SCOTUS. It’ll take years to get this sorted.
Sigh
But doesn’t the 9th usually rule in whatever direction is most opposite gun freedom? Aren’t they the loony circuit whose decisions have virtually no connection with rational thought or interpretation?
Yes. This is the saddest part. The 9th is about the most left leaning, anti freedom court. As they cover Oregon, I’ve been reading their decisions for close to 30 years. Their thought process amazes me. I find it really difficult to think like they do.
Didn’t they rule that growing your own pot affected black market prices and therefore was interstate commerce just to overturn a previous ruling that made machine guns made in Cali legal?
Gonzales V Raich, yet another tortured judicial travesty.
The 9th Circus typically rules to the left. So they’ll uphold this.
No, 9th Circuit will not be involved here. It will be appealed to the state Supreme Court and, regardless of the decision, likely then be appealed to the SCOTUS. With state law, highest state court has the final say unless SCOTUS agrees to hear it. 9th Circuit deals with federal law, which is not at issue here.
For *general* clarity it goes like this:
State court origination in sequence = State Trial Court –> State Appellate Court –> State Supreme Ct. –> US Supreme Ct. (Final)
Sequence with Federal court origination = Fed. District Ct. –> Circuit Ct. of Appeals (Fed.) –> US Supreme Ct. (Final)
pleeeeeeeze Sue the F..I out of these aholes and make them eat sh.t,Get this to the FederalSupreme Court not the California kangaroo court.Heller vs Wash DC is very specific” firearms of common use.AK falls right in their Calif is bias and wrong. 2nd amendment foundation ,NRA,GOA we need you.Pleese go after Feinstein and the rest of these Bozos,I’m in Nevada that’s too close
wat
If I EVER caught my daughter with crack, I’d just jerk her out of school so fast.
Couldn’t resist after that.
Boneless ice cream. Or my new all time favorite.”I’ve spent 10,000 hours studying who really killed JFK!”
Yes! I forgot about the JFK student. Now I’ve got the chuckles
I don’t have a lot of love for AKs, but what happens to them will be applied to ARs. And then center fire semi autos, shotguns, “sniper” rifles, etc. Feinstein should be in prison for treason. I’d settle for jail time based upon her blatant disregard of the gun laws already on the books. She clearly gets a kick out of being above the law while campaigning for more gun control.
Won’t hold up in the real world. Will somebody please push Kalifornia into the sea? I’m fairly certain all the citizens worth keeping have already left, or at least know which way to go.
I’m shocked that a government kourt said the government can do whatever it wants. Shocked!
Relying on the judiciary didn’t work out all that well for Mr Marbury all those centuries ago.We gun owners would do well to learn from his example.
Relying on the judiciary to overrule a legislature staffed with hoplophobes is a fools errand.The problem faced in California, New York, Chicago, Mass,RI, Conneticutt, and NJ among other states will not and cannot be solved by a court.The only solution to anti gun laws is replacing the imbeciles who voted for them with people who know what the RKBA stands for.
Unfortunately, I’ve yet to see gun owners in CA band together to recall their anti gun pols, and from what I understand of CA politics the folks out there love their legalized weed and gay marriage too much to leave the Democrat umbrella.May I be proven wrong on this someday.
There are gun owners napping all over the nation, but living in CA is certainly demoralizing. Personally, I think we have the nations worst federal senators. The problem, as in many areas of the nation, is that massive city populations consistently vote for statist democrats who sell freedom down the river on the empty promise of safety.
There are people trying to motivate gun owners, but we are few and far between.
Correction… There are *enough* folks out here who enjoy liberal activities that anything I say and do is overshadowed by the general stigma which is Kalifornia. Don’t worry, I’m sure wherever you live isn’t too far behind.
ST, I completely agree with your perspective. In a two-party system, there have to be two effective parties. This requires defining and actually mobilizing relatively broad support for….a second platform. I find the CA court’s reasoning to more confounding that that of conservatives (on various issues, by their own definition) who won’t go to the polls, won’t stand behind a candidate, who is less left-wing than the other guy. If people (preaching to the choir…) won’t put forward a list of platform positions that will draw 51% of the vote, and don’t see the need to, they’ll lose much of their gun rights as elected politicians appoint to the courts candidates with left-wing views. Put another way, would you rather lose broad 2nd amendment protection to protect your view on abortion? Some other conservative issue. It is an election, not a purity contest.
If people do not compromise to find an electable platform and candidate, they will find their own rights compromised instead, eventually. If resentment on one issue causes conservatives not to vote, they lose by default as the courts are loaded up by the side that showed up at the polls.
uh, “no more counfounding than that of….”
Although this looks bad, the title doesn’t do it justice. Being California and all, there are Requirements. There’s a roster of guns which are banned and if your AK series rifle does not have the proper configuration it is banned. Inherently, this ruling found that the 2nd Amendment does not protect weapons which are banned. This is not surprising given the methodology in California but does pose some greater issues for those in other states, as this ruling does discuss and imply the fact that protection of the 2nd Amendment does not extend to assault weapons, or anything which could be considered an assault weapon. Nobody panic, but okay, everybody panic… They concluded “the ban on specified semi-automatic assault weapons under the AWCA (assuming this is the California Assault Weapons Ban) does not transgress the Second Amendment.” SO.. if they can do it here, then they can very well do it elsewhere. Because remember, it only has to be scary and black to be considered an assault weapon in some states.
Source: I live in California and yes, the laws are ridiculous.
“are at least as dangerous and unusual as the short-barreled shotgun”
Oh yeah, because, you know: a 17″ barreled shotgun is deadlier than a 18″ barreled shotgun.
Jesus. Who comes up with this shit? I’m so glad I live in a more free state than California. There’s no amount of money in the world that you could pay me to live there.
The ‘nice people’ aka those connected in their political community and those with money can have quieter more concealable long guns. SBSs and SBRs and the suppressed versions are fine. There is simply a requirement to pay a tax and get an approval from the sheriff you helped elect, or pay to create a trust. In other words “keep these things out of the hands of the poor, because they probably want to shoot us.” The theme in the 1870’s was “oh my god, black folks with guns.” The theme in the 1930’s was “oh my god, eastern and southern European immigrants with guns!” It’s all the same theme: “We’re really uncomfortable seeing poor or ‘not-like-us’ folks with weapons.” This same theme plays well all over the world.
What ! – “A ban on semi-automatic firearms does not impinge on rights protected by the Second Amendment because assault weapons ‘are at least as dangerous and unusual as the short-barreled shotgun” – WHAT !!!
The most popular centerfire rifle in the US is a semi-automatic firearm, damn straight a ban on that impinge on rights protected by the Second Amendment. The Founding Fathers did not write the Bill of Rights to let a few privileged people hunt grouse – they had just won the nations freedom from a repressive government who was out to restrict gun ownership using guns owned by private citizens that were every bit the same as the guns used by standing armies of the day. The Founding Fathers would have thought an “Assault Weapon” especially a good rifle (AK, AR, etc) was a very good thing for all freedom loving citizens to personally own.
The Bill of Rights was written and put into place to limit our government’s power over US citizens and government restrictions or bans on firearms are what the 2nd amendment was written to keep from happening.
does this mean no more sales of ak styled rifles in cali? or is this the first step and now it has to pass the next step and so on?
This opinion has absolutely no effect on legally configured AK or AR rifles, only specifically banned or illegally configured rifles. There was no way in hell this appellate court would declare unconstitutional a legislatively enacted ban on particular weapons. As an aside, it just occurred to me that the short-barreled shotgun in Miller was not an illegal weapon per se–it was illegal because it was not registered under the NFA. Technically, the NFA is not a firearms statute, it is a taxing statute.
Mark N., I strongly hope SCOTUS never opines that the ‘commonly held for the purpose’ carbine must have a bullet button. It certainly was not a common form in CA until some legislators forced the improvisation.
Fvck Kalifornia… sorry it needed to be said. Especially after somethin like this. I know a lot of the POTG reside there and fought like hell for your rights but the fact remains it is one seriously fvcked up state.
Always remember, if you voted libtard (democrat) in this state, you got what you got. Don’t vote libtard (democrat) ever again, you morons.
I have never seen a court decision that so completely ignored the whole purpose of the Second Amendment (deterrence and defense against tyranny by balancing power between people and government). I’m so ashamed of this court. There’s no analysis nor understanding in this decision, just legal gymnastics, bending select portions of a prior decision to twist its meaning, to essentially say, the government can ban all very “dangerous” guns. During WWII, most of my entire family in europe was disarmed and taken to camps by armed soldiers where they died. When my family members were taken away and executed, they could have used an AK-47. Have we learned nothing from history?
Tom, I’m afraid that while “we” may not have learned from history (the low-information voters, that is), left-wing politicians learn all too well. They understand two things: 1) In order to control the people (who obviously are not responsible enough to control themselves) you MUST disarm them, otherwise they, in their ignorance, will resist your efforts to protect them from themselves, and 2) In America you have to disarm the people slowly, bit by tiny bit, making it seem reasonable and proper to do so, so that the majority of people do not panic and do keep re-electing you.
These politicians are not stupid or “getting it wrong”, they are evil wanna be tyrants who truly believe they are smarter and better than the rest of us and have the right therefore to force us to live our lives as they determine we should. It is a theme played out over and over again throughout history and what our Founding Fathers tried, to the best of their ability, to prevent with the adoption of our Constitution and Bill of Rights.
I’m starting to worry that the 2A doesn’t apply to CA residents.
Im confused. Could someone show me where in the second amendment that it says “except for these firearms” please.
Frank, the (bogus) argument is that the Second Amendment says “A well regulated militia….”
Politicians and judges with an agenda love to jump on that phrase as justification for disarming the general public since the public is NOT a militia, or well regulated, at any rate. Well regulated in their minds means “controlled by the government.” Even though the Heller decision attempted, half-heartedly, in my opinion, to put this militia argument to rest by showing this to be a “preamble” and the right of the people to keep and bear arms to be the operative clause, the argument is STILL being made by civilian disarmament politicians that if a weapon is not suitable (in their opinion) for use in a militia then they are not violating the Second Amendment by making it illegal for you to own or possess it.
Jeeze Louise! Will someone *please* throw a bucket of water already on that DiFi witch!!
Sick and tired of her and the Kalifornia politburo.
Has anyone noticed that in the picture Adolph Fienstien obviously does not know safe firearm handling by holding her finger on the trigger?
No. You’re the first. No one has ever noticed that before. Not the two or three people that mentioned it above you, nor the three or four people that have mentioned it in every one of the other dozen times that picture has been posted here. Congratulations.
You’re so mean Matt.
Yet I laughed.
Someone needs to commission a sarcasm font to be developed.
I disagree. There is something subtly charming about requiring that a person be able and inclined to read in order to spot the sarcasm.
Heh.
CA courts have a (surprising to outsiders, like the idiot who said the F word to 1/8th of Americans) mixed record here.
It has already been decided in CA courts that a ban on “AR” or “AK” pattern rifles generically was unconstitutional. This was because they found such a standard unconstitutionally vague and broad, thus forcing any ban to more narrow. It required that specific models be banned by name and that only those would be banned. Which effectively killed the essence of the original CA AWB (which was a ban by name), and the CA legislature even passed a law (2006) forbidding any new models to be added to the list. So two identical rifles, except one says LE9201 and the other has CA at the end, one is banned by name, the other not. So effectively the AWB rests on the later, federally inspired, ban by feature part of the AWB.
The CA Supreme Court, especially, tends to be more conservative than would be expected. Oddly, only 1 member was appointed by a Democrat. Heck if you count Arnold as really a Democrat just pretending, even then the majority of the Court were pointed between two other Republican governors. Still not exactly the friendliest court, but not as radical as may be supposed.
Perhaps slightly off-topic, but considering that EVERYBODY knows what it means when you use it, using the euphemism F-word is EXACTLY the same as using the F-word. WTF?
No it is not. Clearly more offense is given through the childish and vulgar word itself than its abbreviation. What makes language offensive is precisely culturally conditioned. It is not a denotative aspect, but a connotative one. Which is why defecation and s#!$ are very different through meaning the exact same thing.
And “f-word” is not a “euphemism.” I don’t think that word means what you think it does. Those who feel the need to comment and share their thoughts, but then simply hurl insults at 1/8th of their country, use obscene language and add nothing substantive are nothing more than ignorant trolls.
It was wrong to respond to Jay1987, even obliquely. He is obviously an anti-gun troll. After all, such vulgar nonsense does nothing but to show him to be both stupid and hateful. Obviously the intent to is dirty our side.
Here is a gem, read the section quoted by TTAG ( bottom pg 4/top of 5 of the decision)
but is instead the right to possess and carry weapons typically possessed by law-abiding citizens for lawful purposes such as hunting or self-defense .
So they are saying we have the right to carry for self-defense. 🙂
But seriously, we shall see if this decision is “published” or whether, if appealed, the CA Supreme Court agrees. And whether or not the “publish” or “depublish” the opinion (in CA the Supreme Court can make a ruling or take a ruling of an Appeals court, and while keeping the conclusion for the particular case, render it irrelevant for precedent or stare decisis…they do this by “depublishing”)
The Second Amendment is not about hunting or personal safety…. it is about a “FREE STATE”. It is about keeping D. Fine-Stye from becoming a DICKtator.
She, and many other left-wing politicians at all levels of government, are already dictators in their own minds, and fully believe they are justified in assuming that power to protecting us from our own follies. The purpose of the Second Amendment was to give us the ability to prevent these people from becoming tyrants-in-fact rather than petty dictators subject to periodic elective recall.
“I got my finger on your trigger…”
The lyric is actually, “And when I feel my finger on your trigger. I know nobody can do me no harm. Because happiness is a warm gun, momma (Bang Bang Shoot Shoot)…
This isn’t a surprise. The second amendment foundation and calguns would agree.
Now we know, the first Amendment (contrasted with the 2nd) only applies to printing presses manufactured prior to 1800, NOT the internet. How could our forefathers ever imagined that darn interwebs…. or its capacity to send messages instantaneously around the globe. Its danger is quite apparent.
And if the lefties wanted to parse the language of the First Amendment as painstakingly as they do the Second this would be one of the results:
The First Amendment says: “Congress shall make no law…” therefore, any state or other government agency may establish a religion, prohibit the free exercise of some or any religions, abridge freedom of speech or the press, prevent the people from peaceably assembling and make it illegal to petition the government for redress of grievances.
Since by their logic the prohibition is only against the federal Congress, as specifically stated in the amendment.
Wow, this decision appears to be very poorly written, by somebody who knows nothing about firearms but was asked, or perhaps ordered to ban AK pattern rifles. If a state supreme court can ban one type of a rifle now, what’s stopping them from banning more firearms of various types later on for equally dubious reasons? Eventually everything but a 6 shot revolver will be banned, and with the incredibly incompetent SCOTUS that we have now, who knows, they just might go along with this.
That is in direct conflict with the 1939 SCOTUS ruling with the Miller case.
I am no lawyer, but this is an issue with California courts, they operate in their own ‘world’ with a distorted view of reality. In order for a case to be examined on actual constitutional grounds the case has to make it out of California, and out of the 9th District, which means it has to be appealed all the way to SCOTUS AND be accepted by SCOTUS.
Here are some problems I see with this decision:
“James noted that, under Heller, it is clear theSecond Amendment right does not protect possession of a military M–16 rifle, and thenconcluded it “[l]ikewise . . . does not protect the right to possess assault weapons . . . . “
This is a misreading of Heller, as Heller states:
“We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. “
Neither Heller nor Miller addressed the constitutionality of the restrictions on machineguns under the NFA. This California decision makes the monumental jump that not only does the Heller decision say that the machinegun restrictions ARE constitutional (no such ruling was made) but that the extending MORE SEVERE restrictions to “assault weapons” are also therby constitutional.
The case holds that “assault weapons” are NOT in common use for legal purposes because the previous ruling in James says that “assault weapons ban” says they are not. Either nobody was able to give testimony and/or evidence to the contrary or such evidence was completely ignored.
In fact, in James there appears to have been absolutely NO effort made to determine if “assault weapons” were in common use for lawful purposes: http://scholar.google.com/scholar_case?case=13683217961104252931&q=People+v.+James+%282009%29+174+Cal.App.4th+662&hl=en&as_sdt=6,24&as_vis=1
James relies on another California decison, Kasler v. Lockyer (2000) 23 Cal.4th 472 [97 Cal.Rptr.2d 334, 2 P.3d 581] (Kasler), http://scholar.google.com/scholar_case?case=1634297592840751535&q=People+v.+James+%282009%29+174+Cal.App.4th+662&hl=en&as_sdt=6,24&as_vis=1 in which appears to have been an effort to enjoin the assault weapons ban from going into effect at the beginning. Of interest:
“Although plaintiffs assert the AWCA fails to satisfy even the rational basis test, they contend it should be reviewed under the “intermediate or even strict scrutiny standards of legal review” because “portions of the [AWCA] touch upon [an] express fundamental constitutional right.” This fundamental right plaintiffs locate in article I, section 1 of the California Constitution, which provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” If plaintiffs are implying that a right to bear arms is one of the rights recognized in the California Constitution’s declaration of rights, they are simply wrong. No mention is made in it of a right to bear arms. (See In re Rameriz (1924) 193 Cal. 633, 651, 226 P. 914 [“The constitution of this state contains no provision on the subject”].) Moreover, “[i]t is long since settled in this state that regulation of firearms is a proper police function.” (Galvan v. Superior Court (1969) 70 Cal.2d 851, 866, 76 Cal.Rptr. 642, 452 P.2d 930.) We reject any suggestion that the regulations at issue here impermissibly infringe upon the right to defend life or protect property guaranteed by the California Constitution.”
I would think that the above would be tossed out on its knees by any federal court, excepting perhaps the 9th, in light of McDonald. To suggest that the Right To Bear Arms is NOT a ‘fundamental right’ because it is not so under the California Constitution ignores that it was held to be ‘fundamental’ in McDonald. Of course, this case was in 2000, 10 years before McDonald.
But the bottom line is that again, it was never examined whether the banned weapons were commonly used for legal purposes, but rather the legislative history was judged to be supreme. A legislative history that appears to have been testimony regarding how dangerous the weapons are since they have been used (along with other, curiously non-banned weapons) in a number of mass murders.
“If plaintiffs are implying that a right to bear arms is one of the rights recognized in the California Constitution’s declaration of rights, they are simply wrong. No mention is made in it of a right to bear arms.”
No specific mention, perhaps, but it is implied. As the Court quoted the State Constitution:
“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”
Yes, “defending life and liberty”, “protecting property”, “pursuing and obtaining safety”.
Just HOW are these “inalienable rights” to be exercised? Are “all people” not by implication also “by nature” entitled to the MEANS of the defense, protection, and safety the State Constitution says is their right?
What sense is there to assuring the people of such rights, while denying them the means to exercise those rights? Is there some specification in the Constitution which forbids the keeping and bearing of arms for the purpose of exercising those rights ? If not, then the people must also have the right to keep and bear arms.
how much longer are we going to continue to allow the courts to “make up stuff” to justify their infringement of the US Constitution? There has to be a line somewhere.
What would you suggest? There isn’t going to be a civil war or revolution fought over gun rights. Working within the system is our only real alternative. This means a defeat of the dems at the polls. We POTG can’t even agree on that. Too many independents and liberterians that will either waste a vote or just not vote.
this. always amazed at how much energy gunfolk will expend on arguing over nitnioid details (which is better. 40 vs. 45) and then take their football and go home when reality approaches. We…that would be many of us OFWG and slacker gamers stayed home in the last election. Thats the simple fact. We got out hustled by the race hustlers and community organizers. If you dont walk the walk (your district) and give money then your are all talk. And stop poinying fingers at gunnies in CA. Its one nation and the Supreme Court
“Too many independents and libertarians that will either waste a vote or just not vote.”
I am a conservative and registered Republican. But I am certainly more libertarian than republican, for a lot of reasons, recent history revealing many. As long as the U.S. of A. is a de facto two-party system any vote for a third party in a major election is the same as throwing away your vote (even if you are just trying to make a political point) and giving that vote to the candidate you like the least.
The only way we who are disillusioned with the GOP, and it seems we are legion, can make a significant difference, is to vote instead at the local party level. Only when we get involved and take the conservative political party away from the GOP and reform it from the inside to more accurately reflect our conservative ideals will we be able to defeat the socialist/Progressive/Liberals.
A revolution is called for and severely needed, but the only civil war needs to occur within the confines of the Republican party itself. WE MUST RISE AGAINST THE RINOS! If we do not then we, or our children or grandchildren, WILL see civil war, and I do not see any good outcome from that in our nation or the world at large.
If this ruling only pertains to the AK the Court might be technically correct in this case. Remember, common use in Heller can be construed as what is in common use by law enforcement agencies and the military. The AK is a Russian rifle not in common use (or use at all) LEOs and the military.
This was my thought as well. I just didn’t have the stones to say it. It’s a combloc firearm.
Then again, what were the arms of common use in the 1770’s?
Foreign and domestic?.. Just thinking out loud here.
Actually, the Heller decision would exclude LEO and the military, as it says “We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” thus implying that to be protected a weapon needs to be in common use for lawful purposes by the commoners.
I am going to appeal to “Justice” Ralph for a ruling here. Your interpretation of Heller is self referencial, i.e., in common use is by definition things that are in common use by the public. I would think the Court would refer to other agents in society to define common use in self defense. For example LEOs use ARs and semiautomatic handguns with standard capacity magazines, therefore these weapons are in common use.
Calm down everyone. It was a California court. Were lucky they didn’t just outright overturn Heller! But seriously. Next SCOTUS case will about the scope, what guns are covered, of the 2A. In Emily Millers new book, Scalia said so. Other cases were denied because they weren’t broad and all encompassing of the 2A like a case about an AWB is. Next case will be NY SAFE Act or the MD case. Heller basically means nothing in every sense. Contains no instructions on how to rule; no standard or review or any unambiguous guide to what weapons are common (all weapons are uncommon in a anti’s eyes). If an AWB is upheld though, the 2A is a dead letter with no meaning. Any weapon for any reason may be banned if an AWB is upheld.
As the Court said in Heller (at 62): “But since this case represents this Court ’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field,any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty.”
The analysis of MILLER in the majority opinion of D.C. v. Heller shows clearly that the Miller Court ignored all other associated questions concerning 2nd Amendment rights, and focused on “Is a short-barreled shotgun the kind of weapon protected under the 2nd Amendment?” “Does it have a military usefulness that justifies this sort of weapon as appropriate for use by the militia, and therefore is covered by the guarantee of the 2nd Amendment as a kind of firearm the people have a right to keep and bear?”
There was no question of Miller’s moral character considered, nor if that character might disqualify him as unfit for militia service.
There was no question about whether Miller was a member of any kind of “organized militia”. He was never considered to be anything but an individual citizen, not “belonging” to any “militia”, or any group of any kind whatsoever.
There was no denial of the individual nature of the “right of the people to keep and bear Arms”. The individual nature of the right was implicitly endorsed – without question — in MILLER.
“Is a short-barreled shotgun the kind of weapon protected under the 2nd Amendment?”
It is perhaps in the psychological make-up of politicians and lawyers to try to find meanings in laws and contracts that fit their needs, whether or not they match the intent of the document as written. Of course a bunch of lawyers are going to ask, and then by default rule on, this particular question, even though it is entirely irrelevant.
The Second Amendment says quite simply, “…keep and bear arms.” It makes no distinction as to what arms or what the intended purpose of those arms originally might have been. Halberds. Maces. Crossbows. Buck knives. Roman era bronze short swords. Slingshots. AK-47 “pattern” rifles. These are ALL arms and could all be used, in extremis, by a militia to fight against tyranny. Keep in mind that during the Great Patriotic War the Soviet army used horse mounted Cossack cavalry with sabers to great effect against the rear echelons of the Nazi invaders.
Any attempt by any politician or court to try to read restrictions into the Second Amendment when the amendment itself allows no infringement, is pure political grandstanding and needs to be immediately and harshly struck down as unconstitutional and potentially treasonous.
This is ridiculous. States should be required to maintain armories with as many select fire rifles and stocks of ammunition for them as there are able bodied citizens between the ages of eighteen and forty five, to be kept under the control of the Governor, to be issued to and used by the citizen militia during times of emergency. All citizens at an appropriate age should be trained in their safe and effective use. Judges should go back to worrying about criminals. By the way, which of the original founders were judges?
‘Scuse me, Kid, but the Second Amendment only says that a well-regulated militia is a good idea and necessary to the preservation of a free state. It does not MANDATE the creation of any such organization, nor does it imply in any way that it should be “well regulated” by any government agency. The whole concept of “the people” having the right to keep and bear arms is so that they may form a militia to fight AGAINST the government, not be forced to join a militia controlled BY the government.
I see more photos of Dianne Feinstein holding semi-auto rifles than we used to of Saddam Hussein.*
*Any resulting comparison of the two is strictly coincidental.
At least Saddam was usually pointing his firearm toward the sky; Feinkenstein always seems to be pointing toward some part of the audience.
“…but is instead the right to possess and carry weapons typically possessed by law-abiding citizens for lawful purposes such as hunting or self-defense…”
In my part of the country, the AK owners are law-abiding citizens using them for lawful purposes such as self-defense. What a crock.
For those inclined to consider what’s been captured in the photograph is in any way representative of a transition from a Blunderbuss in a skirt to that of a New-age Digressive, Illiberal Statist ‘Gun Ma’ — allow that I respectfully contend such an idea to be entirely and irrefutably erroneous.
Gw
I also want to puke every time one of our nation’s courts cite the U.S. Supreme Court Miller decision … how can any courts lend any credence to a case where neither the defendant nor the defendant’s attorneys were present?
I understand and to a very large extent agree with the fact that our courts loath reversing previous decisions. But how valuable is a previous decision when no one was there from one side?
Speaking of, can that be a basis for someone to bring a case to the U.S. Supreme Court? To challenge the U.S. Supreme Court’s previous decision because no one from the defense was there to argue the case?
From my view, there was absolutely no decision on the 2 A. made in MILLER, in spite of the California C of A wishing it were so .
“Which [a short-barreled shotgun] Miller concluded (with apparent approval from Heller) was outside the scope of the Second Amendment’s guarantee. (James, at pp. 674-675.)”
MILLER made no such “conclusion”, nor could HELLER “approve” that non-conclusion. This court attempts to create from the MILLER opinion the opposite of what the MILLER court stated :
“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”
The MILLER Court states clearly that no argument was presented to them about what they considered to be the only question before them; “Is a ‘short-barreled shotgun’ a part of ‘ordinary military equipment’ or could such a weapon ‘contribute to the common defense’?”
“In the absence of any evidence” on that question, they could not “say that the Second Amendment guarantees the right to keep and bear such an instrument”. Likewise, the lack of evidence against the 2 A. protection of such a weapon prevented them from saying the opposite, and from ruling either way on that specific question. Under those circumstances, they wisely remanded the 2 A. question — as they conceived of it, a question of the military utility of a type of weapon — back to the lower court to establish “judicial notice” concerning the military usefulness of a short-barreled shotgun.
Since thousands of weapons of that type had been issued and used by our Armed Forces just 20 years earlier, in WWI trench warfare (they were known as ‘trench guns’), establishing that type of weapon as “part of the ordinary military equipment” would be easily done.
But then Miller was murdered by a fellow criminal, and the remanded question was never argued before the lower court.
“…they wisely remanded the 2 A. question — as they conceived of it, a question of the military utility of a type of weapon …”
Probably because I am not a trained attorney who can find meanings in plainly worded documents where such intent does not actually exist, I am having a great deal of difficulty reading the Second Amendment and finding anything in those twenty-seven words that says anything about the arms that the people are allowed to keep and bear must resemble in any way weapons of military utility. SCOTUS majority in Heller decided, if I recall correctly, that the opening clause about the militia was a preamble stating a reason for the right, not a limitation on the right applying only to militias.
Quite so.
There is nothing so simple that it can’t be turned into a complex and intricate problem by a determined effort to do so.
I have come across several gungrabbers who claim that the term “well regulated” in the 2 A. is evidence that the Founders intended “guns to be regulated”. I have been forced to explain that “well regulated” meant “properly functioning” at the founding, and had no modern connotations of “lots of rules, restrictions, controls, and other regulations”.
I even have to point out to them that “well regulated” modifies ONLY the word “Militia”, and cannot leap into the operative clause to modify either “Arms” or the “right of the people” to keep are bear arms.
SCOTUS did differentiate and limit what should be taken from Miller, highlighting the flaws of the case precedentially. The state courts simply don’t bother to read Heller carefully, nor do they apply its plain meaning where that is clear. I suspect the CA courts willfully neglect Heller, hoping it’s just a bad dream.
Or lamely used it to support their albeit weak conclusion.
I simply don’t need any court to tell me what the Second Amendment means or to what type of guns it’s apply a to, period.
IT IS NOT ABOUT HUNTING!!!!!!!!!!!
I notice that very few have bothered to read either Heller or this decision.
Heller EXPLICITLY asserts that historical circumstances have separated the prefatory clause from the operative, and specifically states that weapons suitable for war and/or fighting against tyranny are, as a result, able to be restricted. They specifically mention the M-16 was a gun not protected by the operative clause. The state court here was not ignoring Heller. Heller is not a perfect decision by itself.
Now mind you, I read this portion of Heller as being less substantive. It leaves the door open to banning all sorts of weapons, but does not actually rule on them. I would say that even with the M-16 example. But still this decision follows Heller fairly closely in the section about “dangerous and unusual” weapons. I think it grants too much importance to the example and assumes to great a likeness of this particular AK to the example, but it is not ignoring Heller. Heller left the door open.
From Heller:
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
And here Heller killed any argument for a right to own any number of guns, most useful for military purposes. I agree that the AK platform is not unusual. And I would argue that the “ban by name” in CA is inherently unconstitutional, as of two virtually identical guns, one made by one company and another made by another company, one is banned and one is allowed. It is unlawful restriction in trade! But let us not pretend this is blatantly outside what Heller said.
The second amendment does not distinguish or differentiate between what type of “arms” the people had the right to bear. There were other types of firearms available in the colonies although the flintlock was the state-of-the-art firearm at the time the U.S. Constitution ( and the first ten amendments ) was drafted. Consequently, the second amendment applies to state-of-the-art firearms today, be they AKs or any other type of semi-automatic weapon
Let’s be very logical,
Why not follow the example of Switzerland? They have very few gun related crimes. But as our second amendment intended, every male must serve in the Swiss army. After serving they keep their assault rifle, and are on “Standby duty”. SO every home that has a veteran living in it has a “Locked and loaded” assault rifle. In my opinion that is how it should be in the U.S.A.
How many veterans agree?
Any “Liberals” like to try to debate me on this one? I have “Never” lost a debate when I was on a debate team. And to me gun control is all rounds in the bullseye.
Bama Bill
I hope she is voted out this cycle. She is worse than an STD with no cure.
Hmmm, well using this courts logic, such as it is, we can conclude then that any right can be so decided.
So, one can then say that the right to vote can be presumed to apply only to those individuals whom are tax payers and property owners. Since allowing others to vote is outside of the purview of the pertinent amendment. And we can also decide that ,say, civil rights should only apply to those whom are of the right political persuasion, using the same logic. I think that tar and feathers are in order for this court.
It’s simple really. If a law is unconstitutional, you are under no obligation to obey it. It’s called tyranny. The Revolutionary War which birthed our nation was started over guns and tyranny, and our ability to defend against it.
this court as usual needs to be IGNORED….they are outside of the Constitution…therefore illegal in their decision….any and all who follow their rulings are TRAITORS to this countries law…the CONSTITUTION….imho
I own more AK’s than I do AR15s… *mind blown* I haven’t broken any laws… This state needs to fall off the map. In the mean time, I’ll be writing my senators.
2A pertains to ALL firearms!! Of course, if you’re a big wig, you can rewrite whatever part of the Constitution that suits you!
More here:
http://www.calguns.net/calgunforum/showthread.php?t=840811
The courts can’t get anything right the 2nd amendment or Obama Care !
Argh, the 2nd amendment has nothing to do with hunting or personal self defense. And the mention of militias is a justification, not a limitation of the right of the people…..
Whatever. I’ve been military for eight years and learned plenty on how to fight wars against tyranny, as have many veterans. Just because a tyrant sits in office in California does not make him any less a tyrant than a man who sat on a throne in Baghdad. Tyranny can also take the form of tyranny by majority, with the majority enforcing its way of life upon a minority. I’ve devoted my life and made my living by fighting tyrants, and this is no different. If they want my guns, they can try to come and take them. I’ve earned my right to bear arms, and it’s not going to be taken away by some politically biased judge who sits in a chair behind armed court security officers while he makes decisions to furthur his political opinions, rather than upholding the Constitution. Too many justices now want to rewrite the Constitution to suit their political ends, rather than doing what they are supposed to do and upholding what the document says. They are frauds and traitors to their oaths and no decision handed down by them ought to be viewed as relevant, legal or abiding.
The decision by one of California’s appellate tribunals does not surprise those of us currently litigating “assault weapons” cases. The appellate court’s reliance on dicta stated in Heller is consistent with that of other court’s that have upheld bans against so-called “assault weapons.” As with all these cases, the State statutes or local ordinances have misconstrued what is truly an assault weapon and the courts upholding bans have erroneously earmarked platform rifles as “dangerous and unusual weapons.” Scholarly interpretations of the Heller decision have noted that the majority failed in its historical study of the scope of the preexisting eighteenth century right to arms that fathered our right to self-defense, the unalienable core right embodied in the Second Amendment. Absent much of Heller’s dicta not necessary to the decision, the lower courts banning semi-auto AR-15, AK-47, and other platform rifles, would lack the limitation language so prevalent in their decisions resulting from their treatment of dicta as law for all practical purpose. In cases such as Wilson v. Cook County, we have prevailed twice in the Illinois State Supreme Court, and on current remand to the State court our opponents are spewing Heller dicta in pleadings, noting that “common usage” is limited to “the type of firearms then in use at the time of the founding,” and further misconstruing statements in Heller that are not the law. We are demonstrating through some of the most renowned experts in the field that modern sporting rifles, which include AR-style rifles, are among the most common used firearms manufactured for civilian use (1990 through 2013, 4.8 million in the U.S.). In that same period 3.4 million AK-style firearms have been imported into the U.S. for civilian use. Also, that semi-automatic rifles banned under the County ordinance are not dangerous and unusual weapons, and that semi automatic firearms have been manufactured and commonly used for civilian purposes for over a century. Historically speaking, there is no such firearm as a “semi-automatic assault weapon.” One of our experts will testify “that scholarly research has consistently demonstrated that crime victims who resist with a firearm (with emphasis on platform rifles) or other weapon are less likely than other victims to lose their property in roberries and burglaries, and they are less likely to be injured compared to victims who do not resist or those who resist without weapons. All but one of our experts have testified in depositions, and soon we will have the pleasure of deposing the county defendant’s experts. I and other co-counsel are certain this case will proceed to the U.S. Supreme Court.
The decision by one of California’s appellate tribunals does not surprise those of us currently litigating “assault weapons” cases. The appellate court’s reliance on dicta stated in Heller is consistent with that of other court’s that have upheld bans against so-called “assault weapons.” As with all these cases, the State statutes or local ordinances have misconstrued what is truly an assault weapon and the courts upholding bans have erroneously earmarked platform rifles as “dangerous and unusual weapons.” Scholarly interpretations of the Heller decision have noted that the majority failed in its historical study of the scope of the preexisting eighteenth century right to arms that fathered our right to self-defense, the unalienable core right embodied in the Second Amendment. Absent much of Heller’s dicta not necessary to the decision, the lower courts banning semi-auto AR-15, AK-47, and other platform rifles, would lack the limitation language so prevalent in their decisions resulting from their treatment of dicta as law for all practical purpose. In cases such as Wilson v. Cook County, we have prevailed twice in the Illinois State Supreme Court, and on current remand to the State court our opponents are spewing Heller dicta in pleadings, noting that “common usage” is limited to “the type of firearms then in use at the time of the founding,” and further misconstruing statements in Heller that are not the law. We are demonstrating through some of the most renowned experts in the field that modern sporting rifles, which include AR-style rifles, are among the most common used firearms manufactured for civilian use (1990 through 2013, 4.8 million in the U.S.). In that same period 3.4 million AK-style firearms have been imported into the U.S. for civilian use. Also, that semi-automatic rifles banned under the County ordinance are not dangerous and unusual weapons, and that semi automatic firearms have been manufactured and commonly used for civilian purposes for over a century. Historically speaking, there is no such firearm as a “semi-automatic assault weapon.” One of our experts will testify “that scholarly research has consistently demonstrated that crime victims who resist with a firearm (with emphasis on platform rifles) or other weapon are less likely than other victims to lose their property in roberries and burglaries, and they are less likely to be injured compared to victims who do not resist or those who resist without weapons. All but one of our experts have testified in depositions, and soon we will have the pleasure of deposing the county defendant’s experts. co-counsel and I are certain this case will proceed to the U.S. Supreme Court.
Ak pistols are dangerous and unusual according to Gura.
Oral arguments in heller, Gura, threw ar15 rifles under the bus.
You so called pro 2a lawyers are worthless.
Since discussion on this subject seems to have reached its peak, I am compelled to respond to you, Mr. Embody, regarding a truly grand generalization regarding those
attorneys who are fighting the fight in the legal trenches to protect your rights and that of millions of freedom-loving Americans. I am certain that Alan Gura would not
waste his time responding to your slur, but I need to state on behalf of myself and
other counsel who you so fondly refer to as “so called pro 2a lawyers” that I would
rather have Alan Gura in my corner than 100,000 who share your sentiments. Thankfully, based on my dealings with pro gun law-abiding citizens for more than 35 years, I doubt that you have many followers.
I don’t need followers, and I don’t need anti-gun rights lawyers like you and Gura giving away my rights.
The Following is from a FB posting called, Patriot Underground:
“I’m starting a petition to regulate the Internet, Television, Print, and any type of media that was created after around 1800 or so.
From here on out the only form of media and speech that will be protected under the First Amendment will be that which was created quill pens and parchment paper and it can only be mechanically reproduced with the single page presses that required the ink to be refilled and the paper reloaded after each page was printed, since that’s all that was around when the Constitution was written. The First Amendment doesn’t apply to blogs or Facebook or TV’s or social media or anything that can be considered “modern communications” because the founding fathers had no idea that we would invent forms of media that reached so many people with such ease and had no way of creating a document that could effectively define it…
Sounds stupid, right? That’s because IT IS STUPID!!! So the next time an idiot gun grabber pulls this argument about muskets and Ar-15’s use their logic against them and see how well they like it. There’s nothing better than watching their heads explode as they start calling you every name in the book because their argument sucks rhino nuts!
Try it sometime
Beaver
Twitter:
@misledpatriot
@Patriot_Beaver”
Unusual; Adjective – Not habitually or commonly occurring or done.
Fairly certain that the word “unusual” doesn’t apply to something that exists in the kind of quantities that AK’s do.
Wrong on all counts, you idiot Judge. The original purpose and intent of the 2nd Amendment was to afford the citizenry of the same ordnance available to the populace as what the military had at their disposal. This was to ensure that in the event of a tyrannical dictator taking the reigns of government, that the citizenry would have a means to overthrow that dictator. Further stated, that would mean that an M1A1 Abrams tank would be legal. You seriously need to do your homework. We the people aren’t the ignorant ones here, and it is high time you became aware of this FACT.
a featureless ar15 is just as effective as an “assault weapon ar15”. over 40 of the other states beg to differ, so obviously something is wrong here…
Just because CA is overpopulated doesn’t make it okay to take away rights. THE RIGHT TO BEAR ARMS SHALL NOT BE INFRINGED.
infringe: to wrongly limit or restrict (merrian webster).
Comments are closed.