I will concede one thing though. When you say that only unicorns can be added to the California-approved list of farm animals, yes a law like that should receive judicial review.
So, how many of the guns sold during this “record year” had microstamping technology? Has it occurred to you that it’s people buying guns before they can no longer buy them? Two manufacturers, Smith and Wesson and Ruger, have already stated that they will no longer sell semi-automatic handguns in California. Others are sure to follow. But hey, RECORD YEAR! There’s no obvious reason, like, maybe, a law (that took effect in 2013, by the way, what a coincidence!) that will make said guns virtually impossible to get, driving sales. Nope. It’s just a RECORD YEAR! How inexplicable!
You are declaring your conclusion here, quite simply begging the question.
Have you yet read Heller or the subsequent cases that dealt with Heller and McDonald? Back in Feb-14 (Post 161) you state you haven’t read the controlling and most recent court case dealing with firearms. While you decry the comparison to 1st amendment jurisprudence, all of the subsequent court cases, including this decision as well as those in the 2nd, 4th, and 9th circuit (one other than I can’t recall) have used the 2 prong analysis which was derived from 1st amendment analogues. You leveled this same criticism in post #159 to which I responded in post #160, illustrating how your criticism was unfounded. So while many circuits have come to different conclusions regarding the analysis process, I believe almost all courts have adopted the framework for analysis that is derived from the 1st amendment. The comparison is precisely on point.
Your continued use of the ‘bazooka’ as a counterpoint implies you either haven’t read Heller, or did not understand it. Heller clearly states that those weapons that are both dangerous AND unusual do not fall under the protection of the 2nd amendment. This example you seem to have an affection for is a strawman.
Why do you think 700 available models and 50 is not?
Again I ask, do you think it’s permissible to limit the number of books you can print to 700?
I never get tired of watching Bone methodically grind his opposition into a fine powder in these threads. The best part is how he does it so calmly and clinically.
I don’t think the analysis is very good (as you point out) and I think the law is stupid and doesn’t work very well for its purported purpose. But the list is pretty comprehensive.
http://certguns.doj.ca.gov/safeguns_resp.asp
The only handguns I have ever owned that are not on the list are either custom, collectibles or gimmicks. The only current production guns that I own that are not on the list are a tiny 22 deringers by North American Arms (only 2 NAA models are on the list) and the Taurus Raging Judge Magnum a really cool looking gimmick gun (its a revolver that can fire shotgun shells and has a barrel as long as your forearm); heck they even have the S&W .460 listed.
We might still win but this is outside the precedents set by Heller and Peruta.
The microstamping issue is different. I don’t think you SHOULD be able to avoid scrutiny for constitutionality by pointing to a grandfather clause. I don’t think it SHOULD matter that there is a long list of approved guns that do not comply with the new law that you are going to grandfather if the law would be unconstitutional absent the grandfather. But regardless of what I think SHOULD be, I also think that microstamping requirements are probably not unconstitutional just as a serial number requirement is not unconstitutional even if it was freshly imposed today in an environment where no manufacturers were making guns with serial numbers.
I think the difference here might be that free speech prohibits government from restricting my ability to express myself and limiting my ability to publish my new book immediately impacts my ability to express myself.
The second amendment prohibits government from restricting my ability to keep and bear arms and limiting my guns to those that come in OD green does not limit that ability. OTOH, if they say my gun have some safety feature that is not in any commercially available gun, then they are restricting my ability to keep and bear arms. In this case, there are still plenty of commercially available guns that have been grandfathered but I’m not sure that grandfather exceptions are enough to save an otherwise unconstitutional law.
I would say that government limiting my gun to OD green instead of Tweety Bird Yellow might be violating my freedom of expression (seriously, WTF is the deal with restricting guns by color or handedness?)
If Glock’s drop safety passes the drop test, WTF do they care if the barrel is 3" or 4" WTF do they care if the gun is 9mm or .40 cal. I think this is why a list might fail intermediate scrutiny. The law is not narrowly tailored to achieve its purported purpose.
I disagree with him of course, but Bone’s posting temperament is A+. He’s an addition to the board.
Very true that there are a lot of gunnuts in CA. But let’s not miss the point. 1.5 million guns have been sold in CA since the law was passed in 2009. I predict that millions more will be sold over the next 10 years. That the gun lobby claims that California is trying to destroy their market is hilarious. Heck they should be thanking the California legislature: for some reason limiting gun selection to 700+ throws bug-eyed lunatics into a commercial frenzy. But then there’s that reliably tenuous grip on reality thing.
I don’t see the circular reasoning. (Sort of funny that I reached for the same metaphor a year later though.)
Let’s examine whether the first amendment analogy has any basis in law or reason.
Not strictly relevant preamble, but touches on the core issue
Now I know you haven’t argued otherwise but Heller provides substantial scope for the regulation of firearms:
[indent]…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. [/indent] Emphasis added. Now that doesn’t tell us whether a gun registry of 700, 7000 or 7 passes constitutional muster. It merely underlines the right of the people acting through their government to regulate firearms.
Where Heller’s (5-4) decision breaks new ground is that it declares, “…an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” The core of my argument is that a gun registry of one could conceivably protect such a right. Never mind 700. Don’t like it? Write your congressman. Because there is no right in the constitution to be a comic book or gunnut completist. [1]
First amendment analogy
I’m finding it difficult to locate what Bone is referring to. Heller states: " The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different."
In other words, Heller stresses that neither right is without bounds. I don’t see anything remotely representing the idea that restrictions on type of firearm are analogous to restrictions on what books you can read. Indeed, the argument is fatuous as self defense does not require an arsenal or even one particular model or another.
Please provide a citation, preferably from the Supremes. Feel free to shift your argument; I don’t anticipate agreement but at least we can be on the same page. I can’t locate what you’re referring to.
[1] Obviously a registry of one would be received skeptically. The majority in Heller state: “It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” So in practice the registry would have to cover a number of self defense challenges. Due process and commerce clause considerations would also prohibit the arbitrary ban of certain weapons. But those are separate principles. At any rate the issue isn’t so much the size of the registry as its scope. A registry of 2000 water pistols wouldn’t pass muster either.
More precisely, I’m claiming that 1st amendment analogues are appropriate when analyzing 2nd amendment claims. Whether the analogy extends to the number of books I don’t think has been precisely answered by any court as of yet, but I do support the general sentiment.
Your request for citations below, though there have only been one case at the SCOTUS level to deal with this outside of the original Heller decision. Other examples are from varying levels of courts.
We can first look to this very opinion:
In Heller, the court makes many references to the first amendment in explaining the meaning and the scope of the 2nd amendment. In Kachalsky, the 2nd circuit recognizes this:
After McDonald, the City of Chicago immediately enacted numerous restrictions on the right to bear arms. These included requirements for permits, and a shooting test at a shooting range, then proceeded to bar all public shooting ranges within the city. This was litigated in the 7th circuit in Ezell vs. Chicago drawing directly on 1st amendment principles:
The two step analysis was first employed in the third circuit in US vs. Marzzarella
This is referenced in the fifth circuit as well in NRA vs. BATFE (pdf):
In any event, comparisons to the 1st amendment are precisely on point. This is not to say that all 1st amendment protections will have 2nd amendment equivalents, nor is it to say that there should be no limits. But your criticism of 1st amendment comparisons is unfounded. Nearly all circuits (I say this because I accept I could have missed some) have adopted the two step approach to the analysis which is informed by the 1st amendment jurisprudence. Different courts have come to different conclusions, but it is clear that 1st amendment analogues are appropriate.
Now that we’ve established that, I ask again:
Why do you think 700 available models is acceptable and 50 is not?
Do you think it’s permissible to limit the number of books you can print to 700?
Obviously this court did not address these questions, but I am asking you.
Has it been addressed by any other court, or does it only persist in the gunnut literature? Because after skimming Heller, I’m pretty dubious about your presentation. I’ll have to dig into that a little more though: thank you for the citations. For now, I’ll address the easy stuff.
Answered in previous post. You misunderstand. A list of 1 would be acceptable, if the state could show that the particular weapon was sufficient to give the firearm owner adequate self defense. The underlying issue isn’t number: it is scope. Elaboration in previous post.
Of course not. Because that limits free expression. You could argue that a gun roster of 700 limits free expression easier than it limits one’s ability to defend oneself. But that absurd argument wouldn’t be a 2nd amendment defense.
The court did address them though. Heller stated explicitly that regulation of firearms were acceptable. And the constitutional precedents weren’t limited to the first amendment. Check out the syllabus: “Like most rights, the Second Amendment right is not unlimited.” It’s saying that the 2nd Amendment doesn’t have boundless scope and later on they argue, “Heck, the first amendment doesn’t either!” That analogy has a rather different flavor than the one you present.
Your characterization is not accurate. The court (Heller) did not address whether it’s permissible to limit the number of books you can print to 700, nor did it address whether it is permissible to have a list in CA that is limited to 700 models, that also restricts 100% of any newly manufactured models. If they did address this, there would be no need for the current lawsuit in question.
Overall I believe you are under the impression that I believe the 2nd amendment rights are unlimited, or something to that effect. I have stated the opposite so I’d like to clear that up. My comparisons to the 1st amendment are not to insinuate that there should be or there are no limits to the protections recognized by the 2nd. See here:
I was under the impression you thought that a list of permissible firearms that only contained 50 items would be constitutionally infirm - mostly from this statement:
But if it is fair to say that you believe a list of 1 could be permissible I can address that instead, with your caveat that the State would need to demonstrate that the particular weapon was sufficient in providing a means for adequate self defense.
The main problem with your argument is that it is in conflict with how fundamental enumerated rights are evaluated in the court. The level of judicial review is determined by the magnitude of the impact of the law. That is why the two step analysis process is critical. The first step is whether the right is implicated. If the answer is yes, then the magnitude of the intrusion is weighed against the various standards of judicial review. There are three levels, Rational Basis, Intermediate Scrutiny, or Strict Scrutiny. In the 2nd amendment context, Heller ruled out rational basis so that leaves only two levels of scrutiny available if the 2nd amendment is implicated at all. (As an aside, the Heller court, as well as that of Moore vs. Madigan, and Peruta declined to undergo scrutiny analysis as the laws in question would not be upheld under *any *standard of review.)
So it would not be sufficient as you say to have a list of one permissible firearm even if it was adequate in providing self defense. If the court first determines that such a list implicates the 2nd amendment, then the analysis would have to meet the tests of scrutiny, either strict or intermediate. In the context of free speech, there are four criteria in the intermediate scrutiny test:
[ol]
[li]Is restriction within the constitutional power of government?[/li][li]Does restriction further important or substantial governmental interest? [/li][li]Is the governmental interest unrelated to the suppression of free expression?[/li][li]Is the restriction narrowly tailored – no greater than necessary?[/li][/ol]
And this is my main disagreement with the Pena case (current case). The court concluded, I believe erroneously, that a restriction that prohibits 100% of any new models not already on the roster, any existing models that are updated by the manufacturer for safety or other features, and as applied, imposed a requirement that is impossible to meet. An entire class of firearm, semiautomatic handgun, was banned if not currently grandfathered. If you agree with the court that this restriction doesn’t impact the 2nd amendment we’ll have to disagree. I think it’s pretty clear it does.
**And here we need to be clear that the microstamping requirement of the Roster is impossible to meet currently. Do you agree with this? ** There may come a time when this is not so, but an ‘as applied’ challenge would reflect this, where perhaps a facial challenge would not.
If we look to the Ezell case, restrictions that made requirements imposed impossible to satisfy were sharply criticized as constitutionally infirm. The idea that a complete restriction on otherwise constitutionally protected lawful acts being permissible because other means are available to circumvent the restriction are extremely suspect. In Ezell, the 1st amendment analogy was used to illustrate this point. Even in Heller, when discussing the banning of handguns vs. long guns, the court rejected the argument that because one type of arm is available it was permissible to ban the quintessential self defense arm.
The only way that the roster is upheld is if the court doesn’t conduct the scrutiny analysis as required in the 2nd step. Because if they did conduct the scrutiny analysis, the roster would fall. To do this, they must conclude as they did, that the 2nd amendment isn’t implicated. I believe they will be overruled on that point.
This line of discussion spawns from your criticism that 1st amendment analogues were facile and inapt. I have shown how the analogues are on point. The results of the analysis has differed in different courts, but all take the same approach to the analysis.
I am not saying that the 1st is the *only *comparison available or relevant, but it is one of many. Do you concede that the 1st amendment analogues are appropriate and/or consistent with current jurisprudence?
Heller stated that regulating the firearms trade is wholly consistent with the 2nd amendment. Naturally, the type and manner of regulation would be subject to judicial review.
Jumping down to core of argument:
Frankly I’d have to look at the case. It’s easy to imagine a decision stating that once you’ve established that the roster provides sufficient means of self defense, that 2nd amendment concerns don’t apply (though other amendments would). Heck, that’s what I argued upthread. But I haven’t looked at Judge Mueller’s decision.
(Part of the reason I haven’t is that I work off of search engines. Do any of our legal eagles know of an internet guide to locating court decisions?)
I agree that no microstamped weapons are currently on the market. I am dubious about the claim that they can’t be manufactured.
I remain uncomfortable with your characterization. I do not see it in Heller: for example I do not see that the 4 part 1st amendment test you outlined is properly applied to a 2nd amendment context. I do see that they apply general principles of constitutional law, but this is unsurprising. So yes, I maintain that the analogy between “banning all but 700 books” and “Limiting oneself to 700 weapons” is facile. Because the former is inconsistent with free expression, while the latter could be wholly consistent with the right to self defense.
Heller declared that there is a constitutional right to bear arms for self defense. It did not establish a right for gun collectors to practice gun fetishism. That concern is not yet protected and shouldn’t be: maintaining that it is a right is risible.
Feel free to repeat concerns that I have not addressed. My posts in this thread have been longer than I think wise as it is.
Which 700 or 50 or 1 constitutes the list of guns that are adequate? What are the characteristics of such a gun?
I linked to the actual opinion from which I’ve quoted from in post #174 (it goes to a GD thread which links to the opinion). Here it is again:
Typically I search for the case name plus some form of “opinion”. If that doesn’t work, the court will publish the opinions themselves that you can find from the court sites themselves. I find Cornell Law usually hosts the big ones that work well enough for linking since they carry HTML versions rather than PDFs.
Again - you are paraphrasing Heller and simultaneously imparting meaning where there was none. Take the above for example, that “Heller stated that regulating the firearms trade is wholly consistent with the 2nd amendment”. This is not what they said. Here is the passage I believe you are referring to:
First, you state the “firearms trade” where the opinion is referring to the “commercial sale”. These are not the same and is the subject of much rancor over private party sales and background checks. Second, the opinion does not state that various regulations are “wholly consistent” with the 2nd, they simply say that their opinion should not be taken to cast doubt on these regulations and prohibitions. The opinion is essentially silent on this matter since they were not part of the questions presented for cert and were not necessary to reach their decision. It’s commentary or dicta, and potential unbinding guidance at best. All of this is subject to revision should SCOTUS elect to take up another 2nd amendment case, but until then, the district and circuit courts are left to interpret the SCOTUS opinions.
If this is true, then the lawsuit should have been granted summary judgment for the plaintiffs. The law that placed the microstampping requirement on the roster was enacted in 2007 (I think). At the time, it was tabled until such time the tech was commercially available by at least 2 manufacturers and unencumbered by patent. Unceremoniously Attorney General Harris declared these conditions to be met and thus the microstamping became required for any new rostered firearms. Of course, if there are none available, then the law should never have taken effect. I suspect this may be a way for higher courts to moot the issue without actually answering the constitutional question. But in any case, based on your own interpretation, the law should not have been activated.
The four part 1st amendment test is the current standard across all jurisdictions forintermediate scrutiny. Here I think you are really revealing ignorance in how constitutional analysis for fundamental enumerated rights is conducted. It is not sufficient to say that a right has other means available to be exercised and therefore the rights are not impacted. The burden is on the government to show that it meets the criteria established by the various levels of scrutiny.
Heller’s analysis showed that the 2nd was implicated. Since the law in question under Heller was a complete ban, there was no scrutiny analysis necessary. SCOTUS did declare that rational basis would be inappropriate, and went on to say that any level of scrutiny would not be met since a total ban was verboten. There was no need to conduct the four part test I mentioned for intermediate scrutiny. In Moore vs. Madigan in the 7th circuit, the same logic was employed. A total ban was in question and it was struck down, without the scrutiny analysis because it wasn’t necessary to do so.
You misunderstand the comparison of books to guns. It is not to say 700 in one case is the same as the other. The point is that a limit of any kind implicates the fundamental enumerated right. Once that is triggered, the 2nd part of the two prong analysis must take place. And, unfortunately in the current case of Pena vs. Lindley, they declared that the 2nd wasn’t implicated and therefore did not undertake the 2nd prong. If they did, I believe the law would fail scrutiny analysis.
That being said, there are numerous cases that have addressed these issues which you appear to be unaware of. Cases that ruled favorably (for my position) are Ezell vs. Chicago, Moore vs. Madigan, Peruta vs. (I forget, San Diego sheriff), and a few others I can’t recall the names of but which I linked in the GD thread, as well of course as Heller, McDonald vs. Chicago, Palmer vs. DC. Cases that ruled unfavorably at the circuit level are Woolard, Kachalsky, Drake which all attempted to address carry rights. There is likely other cases that ruled unfavorably that I can’t recall but have probably read. If you find any then we can discuss the analysis in those as well. ALL of these cases (except those that were for total bans) undertook the two prong analysis that I mentioned earlier, that was derived from 1st amendment jurisprudence. It is not at all inapt to draw on 1st amendment jurisprudence as a guide for analyzing the 2nd. This is not to say that the analysis must result in the same protections but the method of analysis is the same.
I suggest you read the opinions. Read the analysis at places like SCOTUS blog, your own left leaning sites, as well as other right leaning sites. It’s interesting if nothing else. I find Ezell and Moore to be particularly good. But if you only read one, you really should read Heller.
And let me finally address this (my bold):
I could respond to this in a few different ways. One could be to accuse you of enacting a strawman, go on the offensive, and other various attack positions. I don’t think that’s your intent to accuse me or anyone else that is posting currently of these things though so I try my best to exercise restraint. But then there are these other instances which I purposely ignored (my bold):
One of the plaintiffs in Pena vs. Lindley was Roy Vargas. From the initial complaint (pdf):
This is a person with no right hand, trying to buy an ambidextrous version of a pistol that is on the roster. CA denied him the ability to purchase the ambidextrous version, when the right hand version is for sale. They say that he can have the right hand version modified and be the same as the version that is prohibited from sale. This prohibition would not withstand legal scrutiny. This person is not a fetishist, not a homicidal fantasist, not a wannabe cop killer, and not a bug eyed lunatic.
I am a gun rights advocate. I will argue and engage anyone on the topic because I believe I have the better arguments. I attempt to be an ambassador for the movement to persuade those that can be persuaded. I know that each time I engage, I represent my views and I want that representation to be as strong as possible. Typically these types of characterizations derail discussion because we would go back and forth about what various words or intents are and the substantive issues get lost. This is the Pit and all so have at it if you wish. It just makes it less interesting to engage.
Thanks for bumping this thread. I’m always amused to learn how so many right-wing blowhards are obsessed with GUNS GUNS GUNS !!! Is it about protecting Granny when Obama comes to take her to the death camps? Are you guys Truthers and Birthers too? Is Elvis still alive?
Or is just your bloated amygdalas? One Doper admitted he was afraid to travel overseas because he wouldn’t be allowed to pack his Glock. Even the Brickhead “needs” a concealed-carry permit. So he can “stand his ground” from the bailiff if the Judge arrests him for contempt?
Facts?? 
:eek: You think facts have any relevance for these idiots?
You are doing an excellent job. I am reading but staying silent because I simply have no time nor energy to get into debates on any subject other than my “pet” one. But I appreciate very much the calm, fact-based way you have conducted yourself here and elsewhere.
I feel safe guessing that most people consider talking to you to be a chore.
Me too (from the “other side”, sort of.)
It’s like I was watching a presidential debate, when suddenly Adam Sandler strolls in, takes a shit in the middle of the dais, raises his arms in triumph and moonwalks away.
That would be raising the level of discourse in some presidential debates I’ve seen.
Well, if you are left handed and there aren’t very many left handed guns on the list then it could be a problem.
Is the use of a registry narrowly tailored to further important or substantial government interest (that interest being unrelated to suppression of the keeping and bearing of arms)? That is what intermediate scrutiny seems to require.
If you are actively trying to suppress the right to keep and bear arms you must withstand strict scrutiny (see blanket prohibition against felons from owning firearms).