California 'Literacy Tests' for Gun Buyers an Assault on Civil liberty

firearmsnews.com ^ | 1/24/03 | firearm news

[lodwick]

BLAM!

[robertpaulsen]

Not sure. Keep in mind that Congress banned "Saturday Night Specials" which affected mostly black (and white) poor.

[tpaine]

California's state constitution says nothing about the right to keep and bear arms. California has no "second amendment" in the state constitution.
Normally, the 14th amendment would cover a citizens rights at the state level, but the USSC never incorporated the 2nd amendment under the 14th.
Bottom line: California could ban guns if it wanted to.
-rp-


"Incorporation" is a legal fiction used by the USSC and the political power structure to play their silly games.

The constitution uses clear language to declare itself as the supreme 'law of the land' and, in the 2nd, - to protect the peoples RKBA's.
The 9th and 14th clearly support these facts of constitutional law. The arguments used at the ratification of the 14th clearly show that the one of the purposes of the 14th was to make the individual U.S. citizens RKBA's absolutely un-infringeable by state/local governments.

Statists of all stripes cannot abide by this fact.

Your 'incorporation' theory is a red herring. Dupes use it to imply that 'interpreting' our constitution is best left to the 'experts'.

[jeremiah]

I don't understand how local and state jurisdictions can go farther than the fedgov, in regulation of guns. It is a right in the constitution

[tpaine]

The Proposition

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.
________________________________

The 'strict scrutiny' clause on the power to 'regulate', is far too vague, imo.
The same applies to the restraining order bit.

Our gun rights are being regulated away, despite our best efforts at strict scrutiny.
'Majority rules' are voiding reasonable regulations.

[tpaine]

"I don't understand how local and state jurisdictions can go farther than the fedgov, in regulation of guns. It is a right in the constitution."


Simple concept that far to many cannot understand.

Many conservatives here at FR cannot, or will not, acknowledge this truth because to do so their own single issue hoped-for 'regulations', [whereby they WANT states to override constitutional safeguards], could be compared to gun control.

Connecting the War on Guns & Drugs [my title]
Address:http://www.freerepublic.com/focus/news/820965/posts

[drunknsage]

News flash to Californians against gun ownership....just becuase your state constitution does not call for private gun ownership, the constitution does and if I remember correctly, the constitution supercedes any state constitution as far as our rights go.

Anti-gun lobbiests always try and argue that the founding fathers had no intention of civilian gun ownership. When you research their private papers you'll find that private ownership of guns is one of our central and most important rights. Some even consider it one of our basic unalienable rights that doesnt need to be written for us to exercise. Gun ownership is central in the efforct to protect our liberties. America was built to provide its citizen a free country where ones freedom could not be ursurped by a tyrannical and power hungry central government. Gun ownership provides us with a last ditch tool incase we need to protect ourselves. Protection is what it is all about. The police are never around when you need them. Anti gun is about Anti self protection. Id rather keep my guns and secure myself and my family then sit around and wait to be another victim.


Drunknsage

[tacticalogic]

This sucks. I agree with those who say we should have a literacy test to vote, but I fail to see how literacy would have to be a prereq for gun ownership. I can see requiring demonstrating an understanding of the principles of gun safety. Personally, I'd be in favor of requiring you to demonstrate the ability to disassemble, clean, oil, and re-assemble it, but that's probably asking too much.

[coloradan]

The NRA claims somewhere between 4 and 5 million.

[mvpel]

I just read the amendment text. Is it modeled on the language in the constitution(s) of any other state(s)?

As far as I know, no, as it links the right to keep and bear arms to the existing body of law on Article I, Section 1 of the California Constitution. I'll ask the author about it, though.

[mvpel]

You can always buy them in Nevada!

Yeah, but you just can't bring them home to California... A lot of Californians made arrangements to store their firearms at facilities in Nevada when the ban on military-style semi-auto rifles went into effect, rather than registering them.

[Ruy Dias de Bivar]

Literacy test question for black voters(before 1965)...
good also for gun buyers.

"How many bubbles are there in a bar of soap?"

[mvpel]

"Incorporation" is a legal fiction used by the USSC and the political power structure to play their silly games.

It may be a legal fiction that's part of a silly game, but the fact remains that we're down here on the game board, and until we get a definitive ruling from the SCOTUS - and heaven knows how long that will take - or put this Amendment in the state Constitution, we're stuck swimming with the red herrings.

[mvpel]

I don't understand how local and state jurisdictions can go farther than the fedgov, in regulation of guns. It is a right in the constitution.

It's very simple:

... the Second Amendment does not confer an individual right to own or possess arms ...
[Federal Ninth Circuit Court of Appeals, Silveira v. Lockyer (2002)]

Until the SCOTUS slaps down the Ninth yet again, and disposes of this ridiculous "collective right of the states to form militias" idiocy regarding the Second Amendment, or until we pass this amendment, ordinary law-abiding California citizens have no right to own firearms.

[mvpel]

The 'strict scrutiny' clause on the power to 'regulate', is far too vague, imo.

It's only vague if you don't have any legal training. The term "strict scrutiny" has a very specific, well-understood meaning in the vocabulary of the judicial system, as part of a spectrum called "standards of review."

From this page:

1. Three standards:
   1. Three key standards of review appear constantly when courts review the constitutionality of government action
      1. Mere rationality:
         1. The easiest one to satisfy.
         2. The court will uphold the governmental action so long as it meets two requirements:
            1. Legitimate state objective:
               1. First, the government must be pursuing a legitimate governmental objective.
               2. This is a very broad concept — practically any type of health, safety or "general welfare" goal will be found to be "legitimate."
            2. Rational relation: Second, there has to be a "minimally rational relation" between the means chosen by the government and the state objective.
               1. This requirement, too, is extremely easy to satisfy
               2. Only if the government has acted in a completely "arbitrary and irrational" way will this rational link between means and end not be found.
      2. Strict scrutiny:
         1. This standard that is the hardest to satisfy.
         2. This standard will only be satisfied if the governmental act satisfies two very tough requirements:
            1. Compelling objective: The objective being pursued by the government must be "compelling" (not just "legitimate," as for the "mere rationality" standard); and
            2. Necessary means: The means chosen by the government must be "necessary" to achieve that compelling end.
               1. In other words, the "fit" between the means and the end must be extremely tight.
               2. It’s not enough that there’s a "rational relation" between the means and the end, which is enough under the "mere rationality" standard.
               3. No less restrictive alternatives: In practice, this requirement that the means be "necessary" means that there must not be any less restrictive means that would accomplish the government’s objective just as well.
      3. Middle-level review:
         1. In between these two review standards is so-called "middle-level" review.
            1. "Important" objective: Here, the governmental objective has to be "important" (half way between "legitimate" and "compelling").
            2. "Substantially related" means: And, the means chosen by the government must be "substantially related" to the important government objective.
            3. This "substantially related" standard is half way between "rationally related" and "necessary".
2. Consequences of choice: The court’s choice of one of these standards of review has two important consequences:
   1. Burden of persuasion: First, the choice will make a big difference as to who has the burden of persuasion.
      1. Mere rationality: Where the governmental action is subject to the "mere rationality" standard, the individual who is attacking the government action will generally bear the burden of persuading the court that the action is unconstitutional.
      2. Strict scrutiny: By contrast, if the court applies "strict scrutiny," then the governmental body whose act is being attacked has the burden of persuading the court that its action is constitutional.
      3. Middle-level review: Where "middle level" scrutiny is used, it’s not certain how the court will assign the burden of persuasion, but the burden will usually be placed on the government.

Right now in California, we are under the "mere rationality" (also known as "rational basis") standard of review when it comes to gun laws, as should be very easy to tell by what has been passing muster here of late. The burden is on us, as gun owners, to prove the laws unconstitutional, and we've been getting our butts kicked in that respect.

Under a "strict scrutiny" standard, the burden shifts from us to the government to support the enactment of the laws, and the presumption is against them.

And with respect to restraining orders based on violent conduct, coupling it with the strict scrutiny standard it may put an end to frivolous and false allegations of violent conduct as a bargaining tool in divorces, since the standard of proof would be higher.

[tpaine]

Umm, --- but strict scrutiny doesn't seem to be working, does it?
We may have few to many over-trained 'legal minds' imo, and not enough that are able to use common sense logic.

[tpaine]

"Until the SCOTUS slaps down the Ninth yet again, and disposes of this ridiculous "collective right of the states to form militias" idiocy regarding the Second Amendment, or until we pass this amendment, ordinary law-abiding California citizens have no right to own firearms."
34

Incredible reasoning.
~If~ the USSC uses some phony excuse to avoid slapping the 9th Circuit & ~if~ the amendment fails, then what?

Then, you have admitted that "California citizens have no right to own firearms."

[OneLoyalAmerican]

A "we need a tax on stupid politicians" bump.

[hdrider]

A "we need a tax on stupid politicians.

NANCY PELOSI IS LIVING PROOF!

[A6M3]

Reply to post #7: American's rights come from God, therefore only God can legally take them away.