Another Second Amendment win in California

[WildCat]

Why are "private sales" so important? Can you explain that?

In a world without private sales, instead of saying "Here bro, here's that handgun you wanted, I take cash or Bitcoin", you have to say "Here bro, let's walk over to Sports Palace so they can run the middleman paperwork. They charge like $15 for the background check."

Why should a gun store be the only one that can do it? What if they refuse or charge outrageous amounts because they don't want competition? What if the nearest store that can and/or will do it is an hour drive away?

Why not let anyone do it free of charge? In Illinois, for example, we now have a number we can call free of charge to find out if the buyer's FOID card is active. If the goal is to get background checks, rather than putting additional burdens on buyers and sellers, make it free and convenient. Then there's little incentive to skip it.

 

[Ranb]

Why are "private sales" so important? Can you explain that?

I occasionally purchase a gun in a private sale, but most firearms I own are registered via a sale through a dealer or ones I make that have to be registered directly with the BATFE. I do know some people that only own unregistered guns as it is important to them that the government not know what they own, for various reasons. None of these people are criminals and some of them have security clearances.

In a world without private sales, instead of saying "Here bro, here's that handgun you wanted, I take cash or Bitcoin", you have to say "Here bro, let's walk over to Sports Palace so they can run the middleman paperwork. They charge like $15 for the background check."

That is how it might in the utopia in which you live, but in the USA gun dealers are not required to facilitate a private sale by running a NICS. In fact some of them refuse to do so by charging $100 for filling out the 4473 and making a phone call.

Yes, it's an imposition on you. .....

When the law requires that I obtain a back ground check that no one is obligated to provide, then it can be an imposition.

You talk about this like it's "gun grabbers were too stupid to .....

If these people were smart they would try to pass a back ground check bill that is not loaded down with other crap.

HB1588 went through a couple of revisions. One of them required that a gun buyer obtain a background check from their county sheriff's office. Trouble was the police would not perform these checks; I know because I called to ask. If that version of the bill passed, the RCW would not have required that anyone provide a background check on demand.

But people like Mark Kelly (Gabby Gifford's husband) would have us believe that laws like this actually protect the second amendment. Yes, he and the people he speaks for think gun owners are that stupid.

Ranb

 

[AlBell]

Very well-reasoned and quite convincing!

I'm glad you live in a SMSA where 911 response of less than 30 minutes is fast enough there could be no possible reason you need consider self-defense. JREF has become so flaky in terms of sloow response I'm not going to see if I can deduce where ben m is located.

In any rate, as soon as one of you replace one of the existing 5 scotuses you dislike, you can get your views made law.

ps. The SMSA I reside in would consider less than 30 hours rapid response, and in my rural area, less than 30 days; I'm not the only US citizen with these problems.

 

[BStrong]

I'm just going to restate my original thought.

Court decisions in recent years are expanding individual rights to carry a gun. As an example I cited Heller that struck down a Washington D.C. law that had been on the books for thirty-three years. I asked if the issue was so clear why did it take thirty-three years to overturn the D.C. ban on handguns? Why did it take twenty-eight years to overturn Chicago's ban on handguns? The two laws were enacted in 1975 and 1982 respectively. Who was the Chief Justice of the U.S. Supreme Court in 1975 and 1982? Warren Burger. Below is his take on what the Second Amendment confers:



Does this sound like a Justice who would've looked kindly on Heller? IMO that kind of a case would not have even been heard by the Burger Supreme Court. Times change. Now we have a very conservative Court, conservative in a way even Warren Burger could not have predicted.

Which brings me back to my original statement: recent court decisions are expanding individual rights to carry a gun. I don't see a problem with that statement. I really don't.

Because there was no case before the court where the plaintiff or defendant came in with clean hands and competent counsel, and there were no pockets deep enough to support the case through to SCOTUS.

Burger wrote an article for Parade Magazine expressing his opinion.

I'll take an actual SCOTUS ruling over an article in Parade.

 

[newyorkguy]

Because there was no case before the court where the plaintiff or defendant came in with clean hands and competent counsel, and there were no pockets deep enough to support the case through to SCOTUS.

Possible. Can you back it up?

Burger wrote an article for Parade Magazine expressing his opinion. I'll take an actual SCOTUS ruling over an article in Parade.

I'd take a SCOTUS ruling over a magazine article too. That wasn't my point. My point was, until recently the Second Amendment was not seen as giving "law abiding citizens the right to own or carry a gun for lawful self defense." Notice I'm not arguing whether that right should've been recognized, I'm not saying the Second Amendment might not have meant that all along. All I'm saying is the Constitutional right to own or carry a gun for self defense was not recognized by the courts. It was always possible to own or carry a gun for self defense but it was not recognized as a right everyone had. It was recognized as a privilege that cities and states did not have to grant.

I don't understand why the gun rights advocates have such a tough time accepting that. It seems obvious that right was not recognized by the courts. The proof is Heller and McDonald. That was what they were all about. Establishing the Constitutional right to possess a gun for self defense in law.

 

[BStrong]

One part of Peruta that made sense to me:

The majority wrote:

If it wasn't for the fact that in many California counties, contributing to the Sheriff's re-election campaign seems to be a prerequisite to license issuance, the court might have been correct.

Various California counties and the state government in general has had it their own way wrt regulating firearms ownership that along the way they began to believe that they could do no wrong - there are some elected officials and some LE administrators that have been forced to turn-to as the result of legal action (and there are on-going cases as well) and nobody on there side is very happy about it:

http://www.hoffmang.com/firearms/churchill/SFPD-db-13-080-2013-05-09.pdf

"SAN CARLOS, CA – The Calguns Foundation announced today that it has reached a settlement with the City of San Francisco and the San Francisco Police Department in its case Churchill v. Harris, a federal lawsuit arising from law enforcement firearm return policies. The Foundation previously reached a negotiated settlement with the City of Oakland, which was also named in the suit. The controversy arose after the California Department of Justice changed the language it uses in its Law Enforcement Gun Release letters that are required when gun owners seek the return of their firearms after a law enforcement seizure.

The lawsuit had named Attorney General Kamala Harris as a defendant, who was dismissed from the case on 11th Amendment immunity grounds. “During the hearing where the Attorney General was dismissed,” noted Foundation Chairman Gene Hoffman, who attended the hearing, “the court remarked that the Attorney General is doing local law enforcement no favors with their misleading policy.”

“While our continued position is that the confusing language used by the California Department of Justice in their Law Enforcement Gun Release letter is unfair to gun owners, local law enforcement agencies, counties and cities,” continued Hoffman, “our successful resolution of this lawsuit is a step forward in clarifying the duties of local authorities in the return of firearms to their lawful owners.”

What had been going on in Oakland and San Francisco for a number of years is that there was an unwritten policy to seize any firearms that patrol officers or others encountered regardless of circumstance or the legality of possession at the time, and in many cases would refuse to release the firearm(s) to the lawful owner even when said individual had a copy of the State Dept. of Justice LEGR (Law Enforcement Gun Release) form issued to them identifying them as the legal owner of the firearm(s) in question - San Francisco was especially noted for refusing to return firearms w/o legal action being taken against the city, and in many cases claimed that even though no charges had been filed, the department was "still investigating" the incident and could noot release the firearm until their investigation was completed.

 

[BStrong]

Possible. Can you back it up?



I'd take a SCOTUS ruling over a magazine article too. That wasn't my point. My point was, until recently the Second Amendment was not seen as giving "law abiding citizens the right to own or carry a gun for lawful self defense." Notice I'm not arguing whether that right should've been recognized, I'm not saying the Second Amendment might not have meant that all along. All I'm saying is the Constitutional right to own or carry a gun for self defense was not recognized by the courts. It was always possible to own or carry a gun for self defense but it was not recognized as a right everyone had. It was recognized as a privilege that cities and states did not have to grant.

I don't understand why the gun rights advocates have such a tough time accepting that. It seems obvious that right was not recognized by the courts. The proof is Heller and McDonald. That was what they were all about. Establishing the Constitutional right to possess a gun for self defense in law.

http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1209&context=facpub

I know that there was at least one unsuccessful challenge to the DC law in either the late 70's early '80s, but my google fu is weak right now.

ETA: second bold, go back to Dred Scott:

http://www.ourdocuments.gov/doc.php?flash=true&doc=29&page=transcript

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own satiety.

It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

And Cruickshank:

http://supreme.justia.com/cases/federal/us/92/542/case.html

6. The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.

 

[newyorkguy]

6. The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.

We've already discussed Cruikshank. It states clearly the right to bear arms is not granted by the Constitution. The states have the right to set their own policy is what I take it to mean. IIRC correctly you prefer that it refers to something called 'natural law.'

I'm not talking about Cruikshank. I'm talking about this assertion that the Constitution gives people the right to own and carry a gun for lawful self defense. Why do you disagree that the right to own and carry a gun -- a Constitutional right that no state can take away -- has not been expanded (or clarified if you prefer) by recent court decisions? Why did you name this thread, "Another Second Amendment Win?" What was won? What had been lost?

 

[ben m]

I do know some people that only own unregistered guns as it is important to them that the government not know what they own, for various reasons. None of these people are criminals and some of them have security clearances.

So, we're preserving the "private sale" business for the benefit of an arbitrary, (indeed, I'd argue, wholly irrational) personal preference from some paranoiacs? I ask "what public benefit do we get from the private sales loophole, in exchange for the N deaths it causes" and the answer is "it doesn't interfere with antigovernment-rebel fantasy play?" That doesn't sound like a benefit to me, or to anyone I know, or to the vast majority of America's handgun murder victims, few of whom benefited in the least from whatever it is these people called "important" about handgun-ownership anonymity.

Imagine if chemtrails conspiracy theorists demanded, and obtained, special anti-chemtrails practices that caused an extra 747 crash every month. Would we put up with that? Wouldn't the chemtrails people need to explain themselves? "It's important to them for various reasons. None of these people are criminals" would not be enough.

 

[newyorkguy]

go back to Dred Scott:

"it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went...

I would say they are referring to a right that did not clearly exist. Cities and states have restricted and continue to restrict both the right to own a gun and carry a gun. New York City has had a very restrictive law on the books since 1911 that strictly limits who may legally carry a handgun in the city. This law is probably going to be knocked down as un-Constitutional. Now.

 

[Xulld]

I would say they are referring to a right that did not clearly exist. Cities and states have restricted and continue to restrict both the right to own a gun and carry a gun. New York City has had a very restrictive law on the books since 1911 that strictly limits who may legally carry a handgun in the city. This law is probably going to be knocked down as un-Constitutional. Now.

. . . and despite laws, AND consequences people still break the law.


That people break the law is not proof the law was never as it is . . .

So, we're preserving the "private sale" business for the benefit of an arbitrary, (indeed, I'd argue, wholly irrational) personal preference from some paranoiacs? I ask "what public benefit do we get from the private sales loophole, in exchange for the N deaths it causes" and the answer is "it doesn't interfere with antigovernment-rebel fantasy play?" That doesn't sound like a benefit to me, or to anyone I know, or to the vast majority of America's handgun murder victims, few of whom benefited in the least from whatever it is these people called "important" about handgun-ownership anonymity.

Imagine if chemtrails conspiracy theorists demanded, and obtained, special anti-chemtrails practices that caused an extra 747 crash every month. Would we put up with that? "It's important to them for various reasons. None of these people are criminals."

Your arguments in this very forum are evidence that we are not paranoid.

 

[BStrong]

I would say they are referring to a right that did not clearly exist. Cities and states have restricted and continue to restrict both the right to own a gun and carry a gun. New York City has had a very restrictive law on the books since 1911 that strictly limits who may legally carry a handgun in the city. This law is probably going to be knocked down as un-Constitutional. Now.

I'm sure that when a gun-rights group in NY has their funding and plaintiffs w/ clean hands some NYC official will be explaining in an interrogatory why Howard Stern and Robert Deniro can be issued carry permits, but joe blow that doesn't have anything more serious than a parking ticket and is working nights can't.

I'd bet that at the local and state level the law is upheld, and it would end up in front of SCOTUS.

 

[BStrong]

We've already discussed Cruikshank. It states clearly the right to bear arms is not granted by the Constitution. The states have the right to set their own policy is what I take it to mean. IIRC correctly you prefer that it refers to something called 'natural law.'

I'm not talking about Cruikshank. I'm talking about this assertion that the Constitution gives people the right to own and carry a gun for lawful self defense. Why do you disagree that the right to own and carry a gun -- a Constitutional right that no state can take away -- has not been expanded (or clarified if you prefer) by recent court decisions? Why did you name this thread, "Another Second Amendment Win?" What was won? What had been lost?

Does the semicolon restrict you from reading further?

neither is it in any manner dependent upon that instrument for its existence.

It's right in front of your eyes - what does the phrase not say?

In relation to Second Amendment rights in California, firearms owners as a matter of course face stringent and restrictive laws, and the San Diego and Yolo counties decisions are steps in the right direction imo.

Law-abiding individuals in California shouldn't face a galaxy of restrictions that no other citizen of the U.S. faces wrt firearms ownership.

 

[newyorkguy]

We've already discussed Cruikshank. It states clearly the right to bear arms is not granted by the Constitution.

Does the semicolon restrict you from reading further?

neither is it in any manner dependent upon that instrument for its existence.

It's right in front of your eyes - what does the phrase not say?..

You're quoting a court decision that states the Constitution does not grant the right to bear arms to prove the Constitution DOES grant the right to bear arms.

 

[Cylinder]

You're quoting a court decision that states the Constitution does not grant the right to bear arms to prove the Constitution DOES grant the right to bear arms.

They're not arguing that position at all. From reading BStrong's posts, but not speaking for them of course, I will predict that he/she rejects strongly the assertion that the 2nd Amendment grants the right to keep and bear arms...as do I.

 

[newyorkguy]

The effect of recent federal court decisions (Peruta and Yolo County) seem to be inexorably pushing the law to force the nineteen "may issue" states to become "shall issue" states. I don't see anything either in the Constitution or in Cruikshank that mandates that. But here we are.

If I remember correctly, Yolo County -- in response to political pressure -- had increased the number of carry permits issued for handguns for self defense about twenty-fold in the past few years. That obviously wasn't enough. Here's what I see happening.

The D.C. handgun ban was passed into law at a time when street crime had increased dramatically. One of the reasons it was passed was to allow police to frisk anyone they saw with a gun. In Adams SCOTUS held that in jurisdictions where carry permits for handguns are issued the mere fact a police officer observes someone carrying a handgun is not grounds under Terry to frisk them. Instead the officer could ask the person if they had a permit.

Police complained about this. They asserted -- correctly in my view -- that there was a virtual war going on in city streets. That if they asked some of the thugs if they had a permit they'd say, "Yeah I got a permit," pull out the gun and bang-bang. Washington passed a law called the Firearms Control Regulations Act of 1975. Under this law the possession of a handgun became illegal in D.C. Under this law if a Washington cop thought you were carrying a handgun he had the right to stop and frisk you.

The law had the (probably unintended) consequence of making it impossible for homeowners and businessmen to have or carry a handgun for protection. I don't think too many people were concerned with that back in the 1970s and 1980s. Urban streets were too dangerous. Then times changed. Crime decreased dramatically. People began to question the ban. A Cato Institute member named Robert Levy (who has never owned a gun) began to look for a plaintiff so he could file a lawsuit and try and have the ban overturned. He appealed to the NRA to help fund the lawsuit. The NRA did not believe the suit would be successful and they declined. But Levy found plaintiffs, six of them, and he got the lawsuit funded.

Antonin Scalia decided Washington's handgun law was unConstitutional because it did not recognize the absolute and unquestionable right citizens have under the Second Amendment to possess a handgun for self defense. Of his eight fellow justices, four agreed and four disagreed. Washington's 1975 law banning handguns was overturned 5-4.

Had Antonin Scalia been hearing this case in 1978 I don't think he would've come to the same conclusion he came to in 2008. I can't prove that. But times change, people see things in different ways. Laws get amended, reinterpreted. As a cop in New York recently told me, "There's a lot of politics involved in all of this."

 

[Xulld]

The effect of recent federal court decisions (Peruta and Yolo County) seem to be inexorably pushing the law to force the nineteen "may issue" states to become "shall issue" states. I don't see anything either in the Constitution or in Cruikshank that mandates that. But here we are.

If I remember correctly, Yolo County -- in response to political pressure -- had increased the number of carry permits issued for handguns for self defense about twenty-fold in the past few years. That obviously wasn't enough. Here's what I see happening.

The D.C. handgun ban was passed into law at a time when street crime had increased dramatically. One of the reasons it was passed was to allow police to frisk anyone they saw with a gun. In Adams SCOTUS held that in jurisdictions where carry permits for handguns are issued the mere fact a police officer observes someone carrying a handgun is not grounds under Terry to frisk them. Instead the officer could ask the person if they had a permit.

Police complained about this. They asserted -- correctly in my view -- that there was a virtual war going on in city streets. That if they asked some of the thugs if they had a permit they'd say, "Yeah I got a permit," pull out the gun and bang-bang. Washington passed a law called the Firearms Control Regulations Act of 1975. Under this law the possession of a handgun became illegal in D.C. Under this law if a Washington cop thought you were carrying a handgun he had the right to stop and frisk you.

The law had the (probably unintended) consequence of making it impossible for homeowners and businessmen to have or carry a handgun for protection. I don't think too many people were concerned with that back in the 1970s and 1980s. Urban streets were too dangerous. Then times changed. Crime decreased dramatically. People began to question the ban. A Cato Institute member named Robert Levy (who has never owned a gun) began to look for a plaintiff so he could file a lawsuit and try and have the ban overturned. He appealed to the NRA to help fund the lawsuit. The NRA did not believe the suit would be successful and they declined. But Levy found plaintiffs, six of them, and he got the lawsuit funded.

Antonin Scalia decided Washington's handgun law was unConstitutional because it did not recognize the absolute and unquestionable right citizens have under the Second Amendment to possess a handgun for self defense. Of his eight fellow justices, four agreed and four disagreed. Washington's 1975 law banning handguns was overturned 5-4.

Had Antonin Scalia been hearing this case in 1978 I don't think he would've come to the same conclusion he came to in 2008. I can't prove that. But times change, people see things in different ways. Laws get amended, reinterpreted. As a cop in New York recently told me, "There's a lot of politics involved in all of this."

. . . and what does this prove exactly?

That human beings are imperfect arbiters of reality? Or that some of us may compromise our own values and principles, or ignore a document that supposedly enshrines a few of them, or that others will fight to repair such compromises, or that dependent on when in history a thing occurs more or less such people will be of a mind to do so?

Ok . . . . AND?

 

[Ranb]

ben m,

So you asked “Why are "private sales" so important? Can you explain that?” I responded in part with ”it is important to them that the government not know what they own, for various reasons”.

But somehow you now interpret our conversation like this;

I ask "what public benefit do we get from the private sales loophole, in exchange for the N deaths it causes" and the answer is "it doesn't interfere with antigovernment-rebel fantasy play?"

You can’t manage to be honest with yourself, much less to me. How can we have a rational conversation on any topic if you are going to be this way? Of the people I know who prefer to keep their gun collection legally unregistered, none of them as far as I know indulge in the kind of fantasy that you are suggesting.

Ranb

 

[WildCat]

You're quoting a court decision that states the Constitution does not grant the right to bear arms to prove the Constitution DOES grant the right to bear arms.

The decision you cited acknowledges in the very next sentence that the right exists. It just isn't granted by the Constitution, it exists independently of it. Is this really that hard to understand? What do you think the next sentence means?

The effect of recent federal court decisions (Peruta and Yolo County) seem to be inexorably pushing the law to force the nineteen "may issue" states to become "shall issue" states. I don't see anything either in the Constitution or in Cruikshank that mandates that. But here we are.

There are 42 "shall issue" states and only 8 "may issue" states.

 

[newyorkguy]

There are 42 "shall issue" states and only 8 "may issue" states.

Yes sorry, you're right (counting "no restriction" states as "shall issues" states, I think?)

I don't usually use Wikipedia as a reference but in this case I will. Here's a link to a pretty cool interactive map that shows that we've gone from 8 shall issue states in 1986 to 37 in 2013.

I don't know what more compelling evidence there could possibly be to substantiate my assertion that the Second Amendment right to carry a gun has undergone a huge expansion in recent years than this map.