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Thread: 10-Day Gun Waiting Period Potentially Unconstitutional, Eugene Volokh.com

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    10-Day Gun Waiting Period Potentially Unconstitutional, Eugene Volokh.com

    "So concludes today’s Silvester v. Harris (E.D. Cal. Dec. 9, 2013). The analysis -

    The WPL [the Waiting Period Law] prohibits every person who purchases a firearm from taking possession of that firearm for a minimum of 10 days. That is, there is a period of at least 10 days in which California prohibits every person from exercising the right to keep and bear a firearm. There can be no question that actual possession of a firearm is a necessary prerequisite to exercising the right keep and bear arms. Further, there has been no showing that the Second Amendment, as historically understood, did not apply for a period of time between the purchase/attempted purchase of a firearm and possession of the firearm."

    http://ia600803.us.archive.org/13/it...33362.44.0.pdf

    http://www.volokh.com/2013/12/09/10-...onstitutional/
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    Regular Member OC for ME's Avatar
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    Not in California it's not. They have no RKBA clause in their state constitution and it would be argued that 'X' number of days is a reasonable delay.....for the safety of the children.

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    Quote Originally Posted by OC for ME View Post
    Not in California it's not. They have no RKBA clause in their state constitution and it would be argued that 'X' number of days is a reasonable delay.....for the safety of the children.
    Buts I already have a gun .. children behave ... Santa Claus is coming to town

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    Judge denied the state's MSJ. This is hardly a home run. Still a ways to go.

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    Quote Originally Posted by OC for ME View Post
    Not in California it's not. They have no RKBA clause in their state constitution and it would be argued that 'X' number of days is a reasonable delay.....for the safety of the children.
    So, what you are saying is that unless a state has a RKBA clause in their constitution, that public safety merits a reasonable delay. Is not the Bill of Rights applicable in all 50 states? Was this not the reasoning in incorporating the 2nd though the 14th? Conlaw fail.

    Quote Originally Posted by CT Barfly View Post
    Judge denied the state's MSJ. This is hardly a home run. Still a ways to go.
    The court's denial of the DOJ's motion is ostensibly a recognition of a conflict that must be resolved, and another step in the right direction. This, in itself is a coup... as it is assumed that our courts are stacked against gun ownership.
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    The court ruled that the 10 day waiting period violates the US constitution's 2nd amendment.

    The case moves on to determine the status of the other claims of the complaint.

    I'm assuming that the plaintiff has a decent chance of winning.

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by ConditionThree View Post
    So, what you are saying is that unless a state has a RKBA clause in their constitution, that public safety merits a reasonable delay. Is not the Bill of Rights applicable in all 50 states? Was this not the reasoning in incorporating the 2nd though the 14th? Conlaw fail.
    No, that is what you are saying.

    If CA had a RKBA clause (protection) in their constitution then the feds would not be needed to settle these issues for you. How about putting your efforts into getting the protections placed, for the first time, into your own state's constitution.

    CA can institute infringements because CA has no protections for a citizen's RKBA. The federal constitution does not mention "waiting periods" one way or the other. This federal court ruled that 10 days is not reasonable. The court addressed current firearm ownership which proves the false premise that is any cooling-off period requirement, but the judge threw the state a boned and went right back to 10 days is too long. The judge could have tossed the entire "case" right then and there, but did not.

    Quote Originally Posted by ConditionThree View Post
    The court's denial of the DOJ's motion is ostensibly a recognition of a conflict that must be resolved, and another step in the right direction. This, in itself is a coup... as it is assumed that our courts are stacked against gun ownership.
    Get a RKBA protection in your state's constitution and you may find that gun rights will be restored in a more timely manner. Waiting on a federal court calendar is not what liberty seeking Californians deserve.

    Hell, even Illinois has a RKBA clause.
    SECTION 22. RIGHT TO ARMS - Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed. (Source: Illinois Constitution.)
    Where has California been? What are its citizens thinking? Relying in the feds to clean up your mess.....logic fail.

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    Regular Member sudden valley gunner's Avatar
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    Former Spanish Colony, I wonder if that has to do with the lack of protecting certain fundamental rights on a state level.

    They do have a clause though that the U.S. constitution is the supreme law of the land.
    I am not anti Cop I am just pro Citizen.

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    Quote Originally Posted by OC for ME View Post
    No, that is what you are saying.

    If CA had a RKBA clause (protection) in their constitution then the feds would not be needed to settle these issues for you. How about putting your efforts into getting the protections placed, for the first time, into your own state's constitution.

    CA can institute infringements because CA has no protections for a citizen's RKBA. The federal constitution does not mention "waiting periods" one way or the other. This federal court ruled that 10 days is not reasonable. The court addressed current firearm ownership which proves the false premise that is any cooling-off period requirement, but the judge threw the state a boned and went right back to 10 days is too long. The judge could have tossed the entire "case" right then and there, but did not.

    Get a RKBA protection in your state's constitution and you may find that gun rights will be restored in a more timely manner. Waiting on a federal court calendar is not what liberty seeking Californians deserve.

    Hell, even Illinois has a RKBA clause.Where has California been? What are its citizens thinking? Relying in the feds to clean up your mess.....logic fail.
    Its not like the US constitution, nor state constitutions, have prevented infringements. Right here in VA we have a great constitutional provision, yet not that long ago, we had a 30 day waiting period between handgun purchases. Even today, you have to ask permission from the chief of the local paramilitary before you can keep full-auto weapons.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    State Pioneer ConditionThree's Avatar
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    Quote Originally Posted by OC for ME View Post
    No, that is what you are saying.

    If CA had a RKBA clause (protection) in their constitution then the feds would not be needed to settle these issues for you. How about putting your efforts into getting the protections placed, for the first time, into your own state's constitution.

    CA can institute infringements because CA has no protections for a citizen's RKBA. The federal constitution does not mention "waiting periods" one way or the other. This federal court ruled that 10 days is not reasonable. The court addressed current firearm ownership which proves the false premise that is any cooling-off period requirement, but the judge threw the state a boned and went right back to 10 days is too long. The judge could have tossed the entire "case" right then and there, but did not.

    Get a RKBA protection in your state's constitution and you may find that gun rights will be restored in a more timely manner. Waiting on a federal court calendar is not what liberty seeking Californians deserve.

    Hell, even Illinois has a RKBA clause.Where has California been? What are its citizens thinking? Relying in the feds to clean up your mess.....logic fail.
    You have made it plainly evident that you have no idea of the current composition of California's legislature. Your suggestion to make these changes plays out a little like telling a battered wife to file a restraining order against her abusive husband to prevent him from beating her again.

    I might add that even in Illinois, there is little regard for the state level RKBA... else there wouldn't have been a federal lawsuit on behalf of Otis McDonald to impose the Bill of Rights there.
    Last edited by ConditionThree; 12-12-2013 at 12:42 AM.
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    Quote Originally Posted by ConditionThree View Post

    I might add that even in Illinois, there is little regard for the state level RKBA... else there wouldn't have been a federal lawsuit on behalf of Otis McDonald to impose the Bill of Rights there.
    Good point. After Heller & McDonald decisions you would have thought that legislators in IL would have realized that keeping the law the way it was created violations of the RBKA .... also I asked my legislators to repeal our AWB that outlawed many AR15s. What did they do? Expand it.

    These politicians are without honor and are a threat to our way of life.

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    Quote Originally Posted by ConditionThree View Post
    You have made it plainly evident that you have no idea of the current composition of California's legislature. Your suggestion to make these changes plays out a little like telling a battered wife to file a restraining order against her abusive husband to prevent him from beating her again.

    I might add that even in Illinois, there is little regard for the state level RKBA... else there wouldn't have been a federal lawsuit on behalf of Otis McDonald to impose the Bill of Rights there.
    The current composition of CAs legislature is not the doing of the state or federal constitutions. To blame the legislature for CAs abysmal record on gun rights is akin to blaming the gun and not the shooter. It is obvious that the majority of citizens in CA are not interested in restoring gun rights to themselves.

    In a state with so many citizens is there not a Heller, or McDonald, anywhere? The numbers alone can only indicate that there is a landmark case in CA, somewhere, that would in very short order, two to three years perhaps, restore a citizens RKBA outside of their home.

    A shall issue order as was done in Illinois, while not ideal, would permit any non-prohibited person to request to carry concealed. Then OC can be pursued, even with permission as is the case in TN (TN has a weapons carry permit, CC or OC is not segregated). After the permission slips are in place for some time, OCers are seen as just another object to be avoid while walking and texting, then the repeal of the permission slip requirement for OC can begin.

    Liberty minded Californians can continue to use the federal courts to restore liberty and i certainly hope that liberty is restored in short order. But no, equating a RO, a useless document, to inserting a RKBA provision in CAs constitution is defeatists thinking....."well, it'll never get done, so why even try."

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    Quote Originally Posted by OC for ME View Post
    The current composition of CAs legislature is not the doing of the state or federal constitutions. To blame the legislature for CAs abysmal record on gun rights is akin to blaming the gun and not the shooter. It is obvious that the majority of citizens in CA are not interested in restoring gun rights to themselves.

    In a state with so many citizens is there not a Heller, or McDonald, anywhere? The numbers alone can only indicate that there is a landmark case in CA, somewhere, that would in very short order, two to three years perhaps, restore a citizens RKBA outside of their home.

    A shall issue order as was done in Illinois, while not ideal, would permit any non-prohibited person to request to carry concealed. Then OC can be pursued, even with permission as is the case in TN (TN has a weapons carry permit, CC or OC is not segregated). After the permission slips are in place for some time, OCers are seen as just another object to be avoid while walking and texting, then the repeal of the permission slip requirement for OC can begin.

    Liberty minded Californians can continue to use the federal courts to restore liberty and i certainly hope that liberty is restored in short order. But no, equating a RO, a useless document, to inserting a RKBA provision in CAs constitution is defeatists thinking....."well, it'll never get done, so why even try."
    A "California 2A" clause put to the people of California would have a very good chance of being approved in my view. The 2A is a concept more than a prohibition on the government in my view. The people recognize a need to protect their RKBAs, even those citizens who do not own a firearm. Couched in those terms, and with a seemingly sympathetic citizenry these days regarding gun ownership, a effort to insert a 2A into the California constitution is likely more than a remote possibility.

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    Quote Originally Posted by OC for ME View Post
    The current composition of CAs legislature is not the doing of the state or federal constitutions. To blame the legislature for CAs abysmal record on gun rights is akin to blaming the gun and not the shooter. It is obvious that the majority of citizens in CA are not interested in restoring gun rights to themselves.

    In a state with so many citizens is there not a Heller, or McDonald, anywhere? The numbers alone can only indicate that there is a landmark case in CA, somewhere, that would in very short order, two to three years perhaps, restore a citizens RKBA outside of their home.

    A shall issue order as was done in Illinois, while not ideal, would permit any non-prohibited person to request to carry concealed. Then OC can be pursued, even with permission as is the case in TN (TN has a weapons carry permit, CC or OC is not segregated). After the permission slips are in place for some time, OCers are seen as just another object to be avoid while walking and texting, then the repeal of the permission slip requirement for OC can begin.

    Liberty minded Californians can continue to use the federal courts to restore liberty and i certainly hope that liberty is restored in short order. But no, equating a RO, a useless document, to inserting a RKBA provision in CAs constitution is defeatists thinking....."well, it'll never get done, so why even try."

    Here, let me help you.

    In the state senate, there are 28 Democrats, 11 Republicans and 1 vacancy. There are more than twice as many Dems as Reeps.
    In the state assembly, there are 53 Democrats, 25 Reeps, and 2 vacancies. There are more than twice as many Dems as Reeps.

    When there are more than twice as many of one party than the other, this is called a super-majority. Since representation in both houses is determined by population, urban areas like Los Angeles and San Francisco dominate Sacramento politics. Those two areas tell the rest of the state what to do. Democrats get whatever they want and are only limited by time left in the legislative session.

    The only people who are willing to propose a RKBA clause to the state constitution are republican. When a bill is proposed, it enters debate in committee where the members vote to advance or kill the bill before it goes to a vote by the full senate or assembly. This is where most republican bills die, unless it has some bipartisan appeal. This 2A clause isn't advanced legislatively, because it is certain to fail.


    Quote Originally Posted by OC for ME View Post
    A "California 2A" clause put to the people of California would have a very good chance of being approved in my view. The 2A is a concept more than a prohibition on the government in my view. The people recognize a need to protect their RKBAs, even those citizens who do not own a firearm. Couched in those terms, and with a seemingly sympathetic citizenry these days regarding gun ownership, a effort to insert a 2A into the California constitution is likely more than a remote possibility.
    Again, you misconstrue California politics. While California has an initiative process which allows amending the constitution, both the expense of marketing the proposal and collecting enough signatures to bring a 2A proposal to the ballot is likely prohibitive considering most constituents do not view the 2A as a limit on government. It is almost like putting $2M on a single number on a roulette wheel and expecting a payoff.
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    Quote Originally Posted by OC for ME View Post
    In a state with so many citizens is there not a Heller, or McDonald, anywhere? The numbers alone can only indicate that there is a landmark case in CA, somewhere, that would in very short order, two to three years perhaps, restore a citizens RKBA outside of their home.

    There are many Heller's and McDonald's here - but the 9th circuit is the slowest circuit court system in the land...not to mention how slow it is to get there in the first place.

    Also, don't forget that the CA9 Nordyke case was the first case to incorporate the 2nd amendment against the states. Sadly the 9th circuit enbanc panel reversed this decision and McDonald reaffirmed this decision.

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    Quote Originally Posted by mjones View Post
    There are many Heller's and McDonald's here - but the 9th circuit is the slowest circuit court system in the land...not to mention how slow it is to get there in the first place.

    Also, don't forget that the CA9 Nordyke case was the first case to incorporate the 2nd amendment against the states. Sadly the 9th circuit enbanc panel reversed this decision and McDonald reaffirmed this decision.
    Yeah, but after McDonald the 9th has come out with some pro-2nd decisions ..

    They are weird over der.

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    Quote Originally Posted by davidmcbeth View Post
    Yeah, but after McDonald the 9th has come out with some pro-2nd decisions ..

    They are weird over der.
    I don't think a single 2a decision has come out of the 9th since McDonald...neither pro nor con. Off the top of my head, everything here is still in limbo.

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by ConditionThree View Post
    Here, let me help you.

    In the state senate, there are 28 Democrats, 11 Republicans and 1 vacancy. There are more than twice as many Dems as Reeps.
    In the state assembly, there are 53 Democrats, 25 Reeps, and 2 vacancies. There are more than twice as many Dems as Reeps.

    When there are more than twice as many of one party than the other, this is called a super-majority. Since representation in both houses is determined by population, urban areas like Los Angeles and San Francisco dominate Sacramento politics. Those two areas tell the rest of the state what to do. Democrats get whatever they want and are only limited by time left in the legislative session.

    The only people who are willing to propose a RKBA clause to the state constitution are republican. When a bill is proposed, it enters debate in committee where the members vote to advance or kill the bill before it goes to a vote by the full senate or assembly. This is where most republican bills die, unless it has some bipartisan appeal. This 2A clause isn't advanced legislatively, because it is certain to fail.

    Again, you misconstrue California politics. While California has an initiative process which allows amending the constitution, both the expense of marketing the proposal and collecting enough signatures to bring a 2A proposal to the ballot is likely prohibitive considering most constituents do not view the 2A as a limit on government. It is almost like putting $2M on a single number on a roulette wheel and expecting a payoff.
    Thanks for the civics lesson.

    If there is no desire then continue as you have been, no harm no foul. Doing nothing will not place you anywhere other than where you are. It is a safe and known position to be in it seems.

    Having little confidence in your fellow Californians seems to be misplaced in my view and a bit of a insult. If the Prop 8 stats mean anything, and if I recall correctly, a majority of Californians, in spite of LA and San Fran, passed that initiative into "law."

    A 2A clause would not be challenged as was Prop 8 after the fact.

    Keep on keeping on. Good luck.

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by ConditionThree View Post
    You have made it plainly evident that you have no idea of the current composition of California's legislature. Your suggestion to make these changes plays out a little like telling a battered wife to file a restraining order against her abusive husband to prevent him from beating her again.

    I might add that even in Illinois, there is little regard for the state level RKBA... else there wouldn't have been a federal lawsuit on behalf of Otis McDonald to impose the Bill of Rights there.

    Restraining orders don't work, If the citizens of California are the battered wife they have two options, leave or defend themselves.

    The problem with many of the court battles in California and Colorado was the focus not on the right but on the permission to exercise a right.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
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    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Quote Originally Posted by sudden valley gunner View Post
    Restraining orders don't work, If the citizens of California are the battered wife they have two options, leave or defend themselves.
    Exactly. The other out of state armchair QB seems to disagree.
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    Quote Originally Posted by ConditionThree View Post
    So, what you are saying is that unless a state has a RKBA clause in their constitution, that public safety merits a reasonable delay. Is not the Bill of Rights applicable in all 50 states? Was this not the reasoning in incorporating the 2nd though the 14th? Conlaw fail.



    The court's denial of the DOJ's motion is ostensibly a recognition of a conflict that must be resolved, and another step in the right direction. This, in itself is a coup... as it is assumed that our courts are stacked against gun ownership.
    No, SCOTUS ruled that the Federal Second Amendment does not apply to state action.

    The 2A has not been incorporated under the 14th Amendment as far as I know. The purpose of incorporation is to expand the rights of the limited citizenship given to black slaves and other affected minorities after the Civil War.

    42 USC 1981 demonstrates the limited citizenship given to minorities:



    USC › Title 42 › Chapter 21 › Subchapter I › § 1981 ›

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    42 USC § 1981 - Equal rights under the law

    US Code
    Notes
    Updates
    Authorities (CFR)

    Current through Pub. L. 113-36. (See Public Laws for the current Congress.)
    (a) Statement of equal rights
    All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
    (b) “Make and enforce contracts” defined
    For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
    (c) Protection against impairment
    The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

    Notice there is nothing in there about the right to keep and bear arms.

    The citizens of California have no right to keep and bear arms and the Federal Second Amendment does not limit what the California legislature can do regarding keeping and bearing arms. As another poster stated, California citizens need to get the right to keep and bear arms into the California constitution. Gun owners in California will only get that amendment if they demand it.
    Last edited by tomrkba; 12-13-2013 at 11:16 PM.

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    Quote Originally Posted by tomrkba View Post
    SNIP The citizens of California have no right to keep and bear arms and the Federal Second Amendment does not limit what the California legislature can do regarding keeping and bearing arms. As another poster stated, California citizens need to get the right to keep and bear arms into the California constitution. Gun owners in California will only get that amendment if they demand it.
    I'm glad you mentioned this. Its prompted me to some thinking.

    Just kinda thinking out loud here. Bear with me:

    I don't know that getting RKBA into the CA constitution will accomplish much. Government doesn't pay much attention to a constitution anyway. Just witness states that have RKBA in their constitution. And, the so-called "federal" government.* Its pretty obvious govern-ers will try to do what they want, and damn any constitution. A commentator, Gary North I think, remarked astutely that government will always violate rights. Because rights are not necessary to whatever any government agent or group of agents wants to do. A constitution and bill of rights are limitations on what they can do. And, a limitation is never necessary to accomplishing something.

    But, they do pay attention to lost elections.

    Which gives rise to a little bit of analysis: govern-ers will abide (sorta) by the agreements of elections. Meaning, if elected or not elected, they will mostly go along with it. (Although, even then, some of the ruling class and those aspiring to join the ruling class refuse to respect elections. Think election fraud, gerrymandering, etc.) That is to say, they're unwilling to do more than covertly violate the broad social agreements about elections. Gerrymandering is about as far as they are willing to go overtly.

    Hmmmm. Why are they unwilling to overtly violate broad social agreements about elections? Yet, many govern-ers are totally willing to violate obvious constitutional restrictions? And, even when they do set out to violate obvious constitutional restrictions, they're very careful to justify it and explain how it isn't a constitutional restriction.

    Hmmmm. I wonder. It seems to me the govern-ers, too many of who clearly don't actually give a flying **** about the people they rule or they wouldn't be violating constitutional restrictions, are actually worried or concerned about the American people. Concerned about what we'd do if they violated "too much" the rules they think we believe in.

    If that is correct, the solution in CA is less to pass a constitutional amendment, than to get as many voters as possible on the pro-gun side. Issue by pro-gun issue. Lose a candidate or two. Lose an election or two. And, the govern-ers will start respecting the rights demanded by the election returns.

    Of course, that last bit has always been obvious. For myself, I've shifted the weight a bit more towards popular demand, away from constitutional restrictions.


    *The federal government stopped being federal a long time ago. Federal would indicate a federation--a league of independent sovereign states. The so-called federal government long ago subordinated the states, and today tells the states which elements of sovereignty it will let them exercise.
    Last edited by Citizen; 12-14-2013 at 12:31 AM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  23. #23
    Regular Member tomrkba's Avatar
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    I don't know that getting RKBA into the CA constitution will accomplish much. Government doesn't pay much attention to a constitution anyway. Just witness states that have RKBA in their constitution.
    Actually, our government goes to great lengths to appear to be abiding by the Constitution. The vast majority of Federal law since the mid 1940's is based upon the abuse of the Commerce Clause (CC), as approved by SCOTUS. The Gun Control Act of 1968 is a perfect example. It calls the CC in the first line. The TSA justifies its searches through the contract the customer signs with the airline. My guess is that the ACA is entirely based upon the CC. (I have not looked yet, but it's not really worth the effort.)

    Nationally, we need to stop this by scoping the CC to original intent. This will require an amendment that includes a treason charge to any lawmaker who proposes a law on the floor of the House and Senate that violates the amendment. This would automatically repeal huge chunks of Federal law and re-scope many agencies to Federal jurisdiction only (meaning, they cannot affect you or me or IBM or the states).

  24. #24
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by ConditionThree View Post
    Exactly. The other out of state armchair QB seems to disagree.
    What am I quarterbacking? Out of staters can't have an opinion. Even when the flawed argument of your lawsuits you supported so much insured I can't visit my family exercising the same rights I do in my state?
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  25. #25
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    Quote Originally Posted by tomrkba View Post
    My guess is that the ACA is entirely based upon the CC. (I have not looked yet, but it's not really worth the effort.)
    Was upheld (by Roberts as the swing vote) under the taxation clause, not the commerce clause.
    "If we were to ever consider citizenship as the least bit matter of merit instead of birthright, imagine who should be selected as deserved representation of our democracy: someone who would risk their daily livelihood to cast an individually statistically insignificant vote, or those who wrap themselves in the flag against slightest slights." - agenthex

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