Posted on 10/30/2008 7:49:30 PM PDT by marktwain
The California State Constitution does not contain a right to bear arms. So why was San Francisco’s handgun ban get struck down in State Court? (You’d go to federal court to argue about the second amendment in the U.S Constitution.) Because the State Constitution does contain a provision that local governments cannot pass laws that conflict with state laws. (Art. XI, sec. 7.) This is called “preemption” – which is a fancypants legal term for “if two laws conflict, the biggest government wins.”
In 1982, the State Appeals Court held that state laws controlling licensing and registration of guns “preempt” local laws related to the possession of handguns in peoples’ homes. (Doe v. City and County of San Francisco, 136 Cal.App.3d 509, 518 (1982) Download doe_v_ccsf.rtf.) In 2005, San Franciscans nevertheless voted for Proposition H, which banned all City residents from possessing handguns within San Francisco. (Download 2005_prop_h.pdf.) Might this not have been the best idea?
It’s hard to blame the voters. When Mistermayor said, “It clearly will be thrown out [in court]…it’s so overtly pre-empted,” Prop H champion Supervisor Chris Daly made the whimsically optimistic statement, “We’ve crafted the measure carefully so it has a chance to withstand a challenge of state pre-emption.” And voters were all: a whole “chance”? Git-r-done! Prop H passed with 58% of the vote.
Predictably, the National Rifle Association along with several other folks filed a lawsuit in San Francisco Superior Court as soon as Prop H was passed. The plaintiffs won, so the handgun ban was never put into effect. (Download fiscal_lower_court_decision.pdf.) Undeterred, The City appealed that ruling, and lost again. (Download appeals_order_fiscal_case.pdf.) Then The City tried to get the State Supreme Court to hear the case but was refused. Eh, it’s over. Right?
Not so fast. There is still the teensy little matter of plaintiffs’ attorney fees, which, because our handgun ban had exactly zero chance of surviving a legal challenge, The City will almost certainly be ordered to pay. (Man, this is so embarrassing.) Last Thursday the Rules Committee of the Board of Supervisors considered a proposal by the Office of the City Attorney to settle the plaintiffs’ claims for attorney’s fees for $380,000.
(To be clear: this $380k figure does not include the cost for our City attorneys to litigate this impossible case all the way to the State Supreme Court – a figure that is likely a few hundred thousand dollars.)
Daly sits on the Rules Committee and voted against the proposed settlement. So, you know, hope springs eternal even when money does not.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
Apparently, however, no one in California seems to feel that constitutionqal rights pre-empt state rights; nor that unalienable rights, endowed by the Creator, pre-empt the rights of assorted brain dead Lefties to legislate any variety of fanciful nonsense they please.
The California State Constitution contains an explicit incorporation of the Federal Bill of Rights, ergo it does.
My lefty neighbors bitch slapped by the courts and $380,000 in City funds going to the NRA’s attorneys.
Good to see my tax dollars going for something useful for a change.
In 2005, San Franciscans nevertheless voted for Proposition H, which banned all City residents from possessing handguns within San Francisco.How does that apply to police officers? Do they have to live outside the city to be able to carry guns at work?
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