Posted on 10/18/2005 11:28:06 PM PDT by William Tell
NOT ACCORDING TO THE ATTORNEY GENERAL FOR THE STATE OF CALIFORNIA…
| QUOTE: “…. If Plaintiffs ( gun owners ) are implying that a right to keep and 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 keep and bear arms. “ ( Kasler v. Lockyer 2000 ) |
Amending the California Constitution is the best way to restore respect for the rights of law abiding gun owners. It will also undermine attempts by local jurisdictions to restrict your right to keep and bear arms. Candidates for political office will also find that this initiative represents one of the best issues upon which to base their campaign for office. ( Remember how Al Gore lost his own state of Tennessee in 2000? ) The Democrats have learned that hostility to gun rights can lose and election. We think supporting gun rights can win one. We need volunteers to put this issue directly to the voters. As a volunteer you will play a pivotal role in making this initiative a reality at the county level. Our goal is 850,000 signatures of registered voters in California and we can only achieve this with your help!
The inalienable right to defend life and liberty as set forth in Article I, Section 1 of the California Constitution includes the fundamental right of each person to keep and bear arms for the defense of self, family and home. This right shall not be infringed.
1. All State government action regulating the right of law-abiding persons to acquire and possess arms for the defense of self, family and home shall be subject to strict scrutiny, in the same respect as the freedoms of speech and of the press. All county, city and local government action on this subject is preempted by state law and this Amendment.
2. This Amendment does not limit the State from regulating the acquisition and possession of arms by: felons, minors, the mentally incompetent, and any person subject to restraining orders based upon their own violent conduct.
I agree.
It's pretty obvious to me that continuing to allow the disarmament of recently freed slaves was not the intention of those who passed the Fourteenth Amendment.
The "privileges and immunities" of US citizens include an immunity from infringement of their right to keep and bear arms. The Fourteenth Amendment prohibits states from passing any law which abridges those privileges and immunities.
In this case the 9th Circuit (with the majority opinion writen by Reinhardt) held that.... "Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision."
bttt
Has any US SC case involving the 2nd in the last 150 years ever cited the 14th Amendment as validating the RKBA at the state level?
No, but a number of federal lower court rulings have cited that the RKBA is not validated at the state level.
"The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government ..."
-- United States v. Cruikshank, 92 U.S. 542, 551 (1876)
"But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state."
-- Presser v. Illinois, 116 U.S. 252, 264-66 (1886)
"Since we hold that the second amendment does not apply to the states, we need not consider the scope of its guarantee of the right to bear arms."
-- Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982)
And many more, especially from the Ninth Circuit.
Exactly. Which is why I (and many others) have maintained that a trip to the US SC for a 2nd Amendment case is not a slam dunk by any means. In fact, considering the present makeup of the bench, I would be very nervous about any such case.
And besides, you can't force the SCOTUS to do anything.
Even with the clear conflict between the Ninth and Fifth Circuits on the basic meaning of the Second Amendment, they refused to hear the appeal of Nordyke v. King.
Did Nordyke v. King make Second Amendment claims? I thought that I read that it was a First Amendment claim that assembling at a gun show was a form of political or cultural expression. Maybe I have it mixed up with some other case.
The Second Amendment claim was not part of the case until a District Court judge brought it up on his own, at which point Don Kilmer added it to the claim and has argued it all the way up.
The Ninth Circuit's ruling, on page five:
Nordyke also makes a Second Amendment challenge to the Ordinance. Pending the certification of Nordyke’s preemption claim to the California Supreme Court, there were several judicial developments relating to the Second Amendment. As a result, Nordyke filed a motion for supplemental briefing with this court which we granted. Because of our sister circuit’s holding in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), and the change in the United States government’s position on the scope of the Second Amendment,1 Nordyke now urges on appeal that the Ordinance unduly infringes the right of individuals under the Second Amendment to possess privately and to bear their own firearms.
And the Ninth Circuit carried on for a dozen pages starting in Part III about the meaning of the Second Amendment and came to the opposite conclusion of the Fifth Circuit in Emerson, ignoring the meticulous scholarship there and falling back on their Hickman v. Block decision.
Thanks. Now I remember that the judge brought it up.
One can only hope that we someday have a Supreme Court that will do its job.
Here's a ping to a list of California Freepers that was made last year. Your help is needed.
My understanding is that this is an early 20th Century construct.
Thanks for the ping . . . count this Texan in!
No. The Slaughterhouse Cases defined the newly ratified 14th Amenmdment very narrowly as appertaining only to differences of race. Ever since Gitlow v. New York in the 1920s we have been under an Orwellian regime known as "selective incorporation" where some of the BOR was under the 14th and other parts were not. So far, the Second Amendment has not been incorporated, leaving to the several States the power to regulate RKBA pursuant to their role in the organized militia.
For more on this topic than you probably ever wanted to know...
Perhaps, but this may be a good thing. The 9th. Circuit, I believe, can only raise the "Collective Rights" definition of the 2nd. Amendment in opposition to a California amendment, which the Bush Justice Dept. and the 5th. Circuit consider to be a bogus concept. A "collective right" is the same legal oxymoron as "separate but equal". The words may make sense to those with an agenda, such as segregation and gun control, but in reality a right is an individual prerogative and not collective. We don't vote collectively, nor are we secure in our persons, houses, papers, effects, collectively. Separate but equal, by definition, cannot be equal according to SCOTUS and Brown v Bd. of Ed. and rights cannot be rights if they are held to be collective by the state.
Should the 9th. make the bogus claim of collective rights, the next stop is SCOTUS. However, SCOTUS may hear it, then again it may not, which is in itself a form of decision. And that a decision to allow lower courts to nullify the power of the people of a state to amend their own state constitution to conform with the federal. That may be unconstitutional.
In other words, the 2nd Amendment has been the victim of a Mexican standoff. Neither side winning, neither side loosing. A state amendment that is declared unconstitutional on unconstitutional grounds may be just the way to have the 2nd. Amendment "incorporated" with the 14th. Amendment.
Bashing to death one of the original 10 Amendments of the Bill of Rights is not something that the government and legal establishment in Wash DC wants to do anymore than it wants to confront abortion. It has to be cornered. SCOTUS will have to declare the 2nd. Amendment as individual as all other "peoples rights" in the BOR, or declare the 2nd Amendment, unconstitutional, or ignore it. Which they can't do with a straight face because it's in the Constitution.
In all honesty, I am more concerned about it becoming an amendment in California, than I am about the consequences afterward.
The effect of the proposed amendment cannot be challenged by claiming that it is a "collective" right because it uses language which explicitly refers to " ... the fundamental right of each person ...".
I can't see any reason why the Ninth would even find itself in a case. Similar language exists in other states and I am not aware of any claim that it conflicts with federal interests.
The California Supreme Court might take a swing at it, but there really isn't any way to declare a Constitutional Amendment unConstitutional. It is Constitutional by definition since it modifies the underlying document. If is in conflict with prior enactments, then it is the prior enactments that become unConstitutional.
They might try to suggest that it is vague, because it doesn't define arms. But even then, I think the court is obligated to assign some meaning if it is possible to do so, rather than reject it.
BTTT!
I agree. "States rights", or more recently thanks to Richard Nixon's "collective rights", is the legal tool that states use to bludgeon the constitutional rights of the entire state in order to impose those of a privileged minority. The gay "right" to marry being only a recent example.
I would expect that many people & States would refuse to support the court, precipitating a major crisis, one we would not lose.
I hope so. However, we need not turn to violence. Since the services, both active and reserve, tend to rely on the shooting class (of which I consider myself to belong) for its men willing to shoulder arms, then the shooting classes should begin to boycott the military by discouraging its sons and daughters from so joining, National Guard first. We need to deprive these states of their pseudo-federal "militias" that they use as an excuse to deny the original meaning of the 2nd Amendment to its citizens. Those of us who have shouldered a rifle in the defense of this country should indicate our displeasure at the political class by discouraging others from shouldering a rifle to protect them. As far as I am concerned, if a judge denies me the right to the arms to defend myself individually and my country, then that judge forfeits his right to be defended collectively. Even a Supreme Court Justice.
One other item regarding California. The bills that Democrats author, increasing the control of firearms, need the assistance of Republican state legislators to remove or nullify the exception provisions in such laws regarding firearms used as props for movies. If filmmakers are as infringed as the citizenry, some of this nonsense will stop. If Californians don't have guns, why should Hollywood?!
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