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Thread: Why doesn't the 2nd via the 14th apply?

  1. #1
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    OK. Help out a newbie.

    Why doesn't the 2nd Amendment apply to California via the 14th Amendment?

    It looks like everyone gets away with all these ludicrous regs because the California state constitution doesn't have a RTKBA. So what? It's not the controlling authority in this matter. No state constitution can be construed to diminish your rights under the Bill of Rights.

    Has anyone ever tried such a legal approach?

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    franklin wrote:
    OK. Help out a newbie.

    Why doesn't the 2nd Amendment apply to California via the 14th Amendment?

    It looks like everyone gets away with all these ludicrous regs because the California state constitution doesn't have a RTKBA. So what? It's not the controlling authority in this matter. No state constitution can be construed to diminish your rights under the Bill of Rights.

    Has anyone ever tried such a legal approach?
    You know, that had occured to me too! I just think that California is so far off the socialistic deep end that they are too arrogant/ignorant to recognize citizen's rights!

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    ...maybe you don't have the right to life in the state of California (as opposed to moving to another state where you had the rtkba). SUPER reaching for straws here, and i'm obviously no lawyer hah.
    -Unrequited

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    State Pioneer ConditionThree's Avatar
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    I think this may be a situation where those who are in power, influenced by special interests, rely on the populace to be either silent on or ignorant of their civil rights, especially in regards to ownership or carry of firearms.

    Also, like many liberal (ie: restrictive) States, they have taken "reasonable regulation" to a whole new level- and have not been regularly challenged by the citizenry.

    Now that they have ensconced volumes of restrictive law on the books, it will likely require exponentially more effort to remove it than what it took to put it into effect. This is their insurance that they will get what they desire-- turning the issue into a giant rusty fish hook in the flesh of liberty.

    I read the 14th to refresh my memory- and certainly this applies as does Article VI, which reads;

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
    So, not only are our representatives prohibited from making laws restricting our civil liberties, judges are not bound by anything that contradicts the Constitution.

    Why are were here today?

    The people are asleep.
    New to OPEN CARRY in California? Click and read this first...

    NA MALE SUBJ ON FOOT, LS NB 3 AGO HAD A HOLSTERED HANDGUN ON HIS RIGHT HIP. WAS NOT BRANDISHING THE WEAPON, BUT RP FOUND SUSPICIOUS.
    CL SUBJ IN COMPLIANCE WITH LAW


    Support the 2A in California - Shop Amazon for any item and up to 15% of all purchases go back to the Calguns Foundation. Enter through either of the following links
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    The people have been lulled into a false sense of security. The judges are derelict of duty and asleep at their posts.

    Regards
    "Research has shown that a 230 grain lead pellet placed just behind the ear at 850 FPS results in a permanent cure for violent criminal behavior."
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    Actually, it does. Under the California Constitution the US Constitution is the supreme law of the state.


    CALIFORNIA CONSTITUTION
    ARTICLE 3 STATE OF CALIFORNIA


    SEC. 1. The State of California is an inseparable part of the
    United States of America, and the United States Constitution is the
    supreme law of the land.


    I have personally openly carried a loaded firearm for over 30 years in SO California. The open carry is limited to UN incorporated areas which are otherwise not prohibited to the lawful posession, or discharging, of a loaded firearm or on private property and at my place of regular employment. The main thing is that you MUST BE aware of your location and the prohibited areas at all times. You must also be NON CONFRONTATIONAL when openly carrying a loaded firearm. This includes dress as well as demeanor. If you look like you're a member of an outlaw biker gang stoked on PCP while carrying a prominently displayed Python in a mimimalist IWB holster you're gonna be arrested. Not just stopped and questioned, ARRESTED. And usually in a violent takedown manner.

    It comes down to this, OC is legal but you must be smart about how, when and where you do it.


    I'm going to edit this to add the following:

    The second Amendment has been consistently construed to allow "reasonable" regulation of firearms from nearly the first day of its inception. This reasonable restriction would include the prohibition of openly carrying a loaded firearm in higher populated areas. So OC of a loaded firearm in an incorporated city is reasonably restricted and no argument to the contrary is going to fly.

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    Newbie cato's Avatar
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    With that language in the State constitution it would seem that all we need is a federal case like "Parker" to be favorably ruled on by SCOTUS to invoke the CA constitution at the state level.



    Rob,

    What is your method of open car carry, belt holster, passenger seat, or dash? And when in a prohibited area where is your mag or speed loader? Pouch, pocket, etc...

    And welcome to the forum!

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    When I open carry it's on my belt in either a cross-draw or on my hip depending on what I'm doing when carrying. (FBI is a pain the in rump whencarrying a backpack and cross draw sucks when biking) When in a prohibited area the weapon is stowed according to law. That usually means that the weapon is unloaded and in it's carry case, because it's less likely to be damaged or cause a problem when transporting it that way, or concealed.

    I would not recommend trying to open carry a loaded firearm in your car without some sort of exemption like a CCW. Remember, not everyone has a CCW yet everyone is entitled to OC in unincorporated areas. IIRCthere is a state and/or federal prohibition of carrying / transporting a loaded weapon in a vehicle. I also believe that there is a prohibition against having a loaded weapon within 200 yards (feet?) of a public highway. Since your car would be on a public highway you'd be violating two laws in one instance unless you had a CCW to exempt you from that. (unless you were on private prop in which case the issue of OC is moot) Again, not everyone HAS a CCW so the general rule should be to open carry ONLY on your person in areas where you are allowed to do so AND have a legitimate reason for carrying a weaon. (Remember, theres a legal prohibiiton against OC and "wandering" without any purpose from place to place. So, have a specific destination and/or reason when OC.) Having the weapon holstered AND secured is also a good defense against a brandishing allegation. Something not available if you have it on the dash even in a holster.



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    franklin wrote:
    OK. Help out a newbie.

    Why doesn't the 2nd Amendment apply to California via the 14th Amendment?

    It looks like everyone gets away with all these ludicrous regs because the California state constitution doesn't have a RTKBA. So what? It's not the controlling authority in this matter. No state constitution can be construed to diminish your rights under the Bill of Rights.

    Has anyone ever tried such a legal approach?
    I think you may misunderstand the 14th Amendment...... this may help explain my statement.......

    http://www.originalintent.org/edu/14thamend.php

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    Newbie cato's Avatar
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    Rob P. wrote:
    IIRCthere is a state and/or federal prohibition of carrying / transporting a loaded weapon in a vehicle. I also believe that there is a prohibition against having a loaded weapon within 200 yards (feet?) of a public highway... (Remember, there's a legal prohibition against OC and "wandering" without any purpose from place to place. So, have a specific destination and/or reason when OC.) Having the weapon holstered AND secured is also a good defense against a brandishing allegation. Something not available if you have it on the dash even in a holster.

    Direct quotes and penal code numbersfrom the laws your citing would be helpful to make your points. I'm familiar with PC 417 (brandishing) buthave never heard of/ read the other laws (stateand federal) that your citing except the one listed below.

    The wandering law is not open carry specific but that could beone of the factors in the arrestlisted by the officer in his report. This section is of dubious constitutionality and I have been warned by my department against using it except in unusual cases and the arresting officerneeds to write a truly outstanding report making an unassailable case that a person needed to be identified by arresting him for the public safetyconsidering that there was no other law that could be charged.

    here it is:

    PC 647. Every person who commits any of the following acts is guilty
    of disorderly conduct, a misdemeanor:

    (e) Who loiters or wanders upon the streets or from place to place
    without apparent reason or business and who refuses to identify
    himself or herself
    and to account for his or her presence when
    requested by any peace officer so to do, if the surrounding
    circumstances would indicate to a reasonable person that the public
    safety demands this identification.

    And if you choose to ID yourself to the officer then he can't even apply this section open carrying or not. Feel free to wander far and wide while OCing!!


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    Cato, I realized in my post in another thread that I have accidentally mentally cross referenced the Fish & Game prohibition against loaded long arms to also include a prohibiton against loaded short arms in vehicles and the taking of game within a specified distance of a road or highway.

    However, I also believe that, appellate court desision to the contrary, transporting a firearm in a vehicle requires that it be in a locked container or stored in the vehicles trunk. PC 12026.1 Also, PC 12026.2(20)(b) requires that the weapon be unloaded while being transported. Based upon this, I would not consider transporting a weapon in a vehicle unless it was either carried pursuant to a CCW permit/exemption OR was transported unloaded and locked away.

    I have not read the Clark (?) decision so I do not know if this directly limits the application of both 12026.1 and 12026.2 when transporting firearms.

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    Rob P. wrote:
    transporting a firearm in a vehicle requires that it be in a locked container or stored in the vehicles trunk. PC 12026.1 Also, PC 12026.2(20)(b) requires that the weapon be unloaded while being transported.
    You are correct, but in regards to concealed pistols andrevolvers as in 12025 PC (which only deals with concealed pistols and revolvers).

    12025. (a) A person is guilty of carrying a concealed firearm when
    he or she does any of the following:
    (1) Carries concealed within any vehicle which is under his or her
    control or direction any pistol, revolver, or other firearm capable
    of being concealed upon the person.
    (2) Carries concealed upon his or her person any pistol, revolver,
    or other firearm capable of being concealed upon the person.
    (3) Causes to be carried concealed within any vehicle in which he
    or she is an occupant any pistol, revolver, or other firearm capable
    of being concealed upon the person...



    (f) Firearms carried openly in belt holsters are not concealed
    within the meaning of this section.


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    franklin wrote:

    Why doesn't the 2nd Amendment apply to California via the 14th Amendment?
    It probably does, but the Supreme Court hasn't ruled on it...YET.

    Parker v. The District of Columbia (the case that struck down DC's ban on owning firearms in one's own home) is being appealed to the Supremes and the issue is - get this - whether the 2nd Ammendment applies to DC because it reads "...the security of a free state..." and DC - they argue - isnt' a state.:P (the obvious meaning of the general phrase "A free state"as opposed to"THE free states" would lead one to believe the framers were using the word state in the generalmeaning...as in government, but I digress.

    Anywayz...the incorporation of the 2nd Ammendment under the 14th ammendment will probably have to be decided BEFORE the court can answer DC's appeal that they aren't a state. So we should have our answer fairly quickly (probably by this time next year). Also, the Court will have to rule about whether the 2nd Ammendment is an individual right. Winning BOTH of these would be a HUGE success since we've been operating for the last 70 years under the assumption that RKBA is NOT an individual right.

    Experts I've talked to are optimistic that the good guys will win this one. I hope they're right.

    Do keep in mind though, that even if the good guys do win, this ONLY means that people can own guns in their homes. Future litigation will have to decide anything beyond that.

    For more info on this, check out this video from last month's Virginia Citizen Defense Leage meeting: http://www.youtube.com/watch?v=cIVVVewXj5Y

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