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Thread: Using DC v. Heller to eliminate CA Laws?

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    http://volokh.com/posts/1238111035.shtml

    [line]Snip...After a police officer's 12-year-old son got access to the officer's handgun, the officer was prosecuted for violating Mass. Gen. Laws. ch. 140, § 131L:
    It shall be unlawful to store or keep any firearm, rifle or shotgun ... in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user. For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user.
    Last month, the court held the statute was unconstitutional (Commonwealth v. Bolduc), and dismissed the prosecution. I only just now managed to get a copy of the opinion, and here's the relevant discussion:
    The locking mechanisms [required by the statute] are the functional equivalent of those enumerated in the D.C. statute struck down in Heller.
    In Heller, the Court held that the Second Amendment not only protects an individual's right to possess firearms but that the right requires that the firearms be available for "the purpose of immediate self-defense." The Massachusetts statute mandating lock boxes or similar devices would frustrate an owner's ability to immediately access an operable weapon.
    Although the statute exempts firearms that are "carried" or "under the control of the owner" from the requirement that they be locked, the statute applies to the lawful owner of a firearm even when he is at home. People can be subject to prosecution whether they are home or not. The term "under the control of the owner" is a question of fact and subject to interpretation. Any ambiguity in the statute as applied to a person lawfully keeping a firearm in the home must be resolved in favor of the holder of the right. Legislation requiring an owner to store firearms in a place inaccessible to children or unauthorized persons would satisfy the Supreme Court's holding in Heller and protect the safety of others.
    In light of the foregoing, the Court finds that, based on the Supreme Court's decision in District of Columbia v. Heller, G.L.c. 140, sec. 131L is unconstitutional.
    ...Snip[line]
    IANAL. Seems there might be something here to be used in CA cases. Perhaps not exactly, but creatively. A prohibition that disallows a firearm from being readily available (think unloaded, not available ionat all, locked up, location prohibitions, etc.) for "immediate self-defense" should be considered unconstitutional.
    I know, I have not offered an in-depth discussion. Just want to get this out there for us to think about. We all need all the help we can get to overturn CA's bad/vague carry, transport & possession laws. Whatever works. This tack worked in MA.
    [line]
    I found this here: http://opencarry.mywowbb.com/forum4/23643.html

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    Also usable:
    Any ambiguity in the statute as applied to a person ... must be resolved in favor of the holder of the right.

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    Sounds like the court decided to apply Heller before it was incorporated.

    Once we have incorporation, the logical conclusion is the tossing out of a lot of trash in our Penal Code. However, expect resistance, and possible lengthy court battles to get the "Criminal Justice" system to comply with SCOTUS rulings.
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    Anti-Saldana Freedom Fighter Sons of Liberty's Avatar
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    CA_Libertarian wrote:
    Sounds like the court decided to apply Heller before it was incorporated.

    Once we have incorporation, the logical conclusion is the tossing out of a lot of trash in our Penal Code. However, expect resistance, and possible lengthy court battles to get the "Criminal Justice" system to comply with SCOTUS rulings.
    Is there a comprehensive link that explains "incorporation"? What must be done to "incorporate" the Heller decision in each state? Thanks.
    Clinging to God & Guns: The Constitution Restoration Project

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    Sons unfortunately just because a federal law says one thing doesn't mean that each state has to go along with it. If the state law is goes further than the federal law the state law can stand. Which is the only reason that Cali can get away with some of the most moronic gun laws in the country. Although with a favorable Nordyke rulling we might be able to begin the long process of fighting to change those with both Heller and Nordyke in our favor.

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    Anti-Saldana Freedom Fighter Sons of Liberty's Avatar
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    KylaGWolf wrote:
    Sons unfortunately just because a federal law says one thing doesn't mean that each state has to go along with it. If the state law is goes further than the federal law the state law can stand. Which is the only reason that Cali can get away with some of the most moronic gun laws in the country. Although with a favorable Nordyke rulling we might be able to begin the long process of fighting to change those with both Heller and Nordyke in our favor.
    But doesn't the 14th amendment prevent states from enacting and enforcinglaws that would deny2nd amendment rights?

    "...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
    Clinging to God & Guns: The Constitution Restoration Project

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    Campaign Veteran marshaul's Avatar
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    Sons of Liberty wrote:
    CA_Libertarian wrote:
    Sounds like the court decided to apply Heller before it was incorporated.

    Once we have incorporation, the logical conclusion is the tossing out of a lot of trash in our Penal Code.* However, expect resistance, and possible lengthy court battles to get the "Criminal Justice" system to comply with SCOTUS rulings.
    Is there a comprehensive link that explains "incorporation"?* What must be done to "incorporate" the Heller decision in each state?* Thanks.
    http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

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    Sons of Liberty wrote:
    But doesn't the 14th amendment prevent states from enacting and enforcinglaws that would deny2nd amendment rights?

    "...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
    Makes you wonder how the hell our government can pervert such clean and perfectly clear language to mean something entirely different.

    This ridiculous seizure of power is exactly why the founding fathers and the first states decided that the right to keep and bear arms should always and absolutely remain. Without it we would, over time, lose our power to take our government back. With it we would always have a Plan B.

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    Anti-Saldana Freedom Fighter Sons of Liberty's Avatar
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    marshaul wrote:
    Sons of Liberty wrote:
    CA_Libertarian wrote:
    Sounds like the court decided to apply Heller before it was incorporated.

    Once we have incorporation, the logical conclusion is the tossing out of a lot of trash in our Penal Code. However, expect resistance, and possible lengthy court battles to get the "Criminal Justice" system to comply with SCOTUS rulings.
    Is there a comprehensive link that explains "incorporation"? What must be done to "incorporate" the Heller decision in each state? Thanks.
    http://en.wikipedia.org/wiki/Incorpo...ill_of_Rights)
    After reading that explanation, my head feels better after banging it against a wall.

    What's the point of being a U.S. citizen and having aConstitution and a Bill of Rights, if it doesn't mean anything until a judicialbody says it means something? What does it mean to be a U.S. citizen, if any state can choose to ignore those documents that gave birth to this nation until a judicial body "incorporates" them against that state? Seems to me that these documents self-declaretheir applicability to citizens of this nation, havingbeen established with the blood of its patriots. I cannot fathom that after over 200 years, our nation is unclear on whether or not the second amendment is enforceable!

    I think I understand the concept of the state's right to self-govern. But, I don't think that the self-government of the state should interfere with the rights of being U.S. citizens as defined in the documents that made these states and its peopleone nation.Texans and Californians andVirginians share and havecommon rights, freedoms, and liberties that identify us as being U.S. citizens (including the right to keep and bear arms)! If not, then we are just Texans, Californians, or Virginians; there are no more U.S. citizens.

    Unfortunately, I thinkthat we have lost touch in the maze of litigation with the essence of what it means to be a U.S. citizen.

    Clinging to God & Guns: The Constitution Restoration Project

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    I don't think you guys have to wait for any incorporation....you already have it.


    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.


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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Ooooh. I like! Time to read the state Constitution

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    Shawn wrote:
    I don't think you guys have to wait for any incorporation....you already have it.


    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.
    We really havent missed this. The 2A is unfortunately held in great distain in California and subsequently is subject to 'reasonable' restrictions. State law doesnt prohibit ownership- but limits on where and how you carry are numerous.
    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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  13. #13
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    Sons of Liberty wrote:
    marshaul wrote:
    Sons of Liberty wrote:
    CA_Libertarian wrote:
    Snip...

    Once we have incorporation, the logical conclusion is the tossing out of a lot of trash in our Penal Code. However, expect resistance, and possible lengthy court battles to get the "Criminal Justice" system to comply with SCOTUS rulings.
    ...snip
    http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)
    After reading that explanation, my head feels better after banging it against a wall.

    What's the point of being a U.S. citizen and having aConstitution and a Bill of Rights, if it doesn't mean anything until a judicialbody says it means something? What does it mean to be a U.S. citizen, if any state can choose to ignore those documents that gave birth to this nation until a judicial body "incorporates" them against that state? Seems to me that these documents self-declaretheir applicability to citizens of this nation, havingbeen established with the blood of its patriots. I cannot fathom that after over 200 years, our nation is unclear on whether or not the second amendment is enforceable!

    I think I understand the concept of the state's right to self-govern. But, I don't think that the self-government of the state should interfere with the rights of being U.S. citizens as defined in the documents that made these states and its peopleone nation.Texans and Californians andVirginians share and havecommon rights, freedoms, and liberties that identify us as being U.S. citizens (including the right to keep and bear arms)! If not, then we are just Texans, Californians, or Virginians; there are no more U.S. citizens.

    Unfortunately, I thinkthat we have lost touch in the maze of litigation with the essence of what it means to be a U.S. citizen.
    +1000. I absolutely agree with your assessment of things.

    I have learned, unfortunately over the years, that there are those in "official" positions who love to play a tyrannical game with citizens' rights. They claim they can pass laws (which are obviously unconstitutional) and have them be in effect until a judge or court says they can't.

    There is no penalty put upon them for doing so. The only recourses are to constantly take them to court, publicize their tyranny and/or vote them out of office. Unfortunately, those rascally politicians know it is very difficult to unseat an incumbent, and get the press to really do it's job. The court process is costly, time-consuming, unwieldy and often puts you in front of a judge who is just fine with abrogation of Constitutional rights. And, frankly, much of the public is asleep, or, worse yet, supportive of their diabolical ways.

    The "BAD" elected reps know this. This is why it is important to know the mindset of those we elect, place in our courts, or put in regulatory positions.

    Look at how DC is reacting to the HELLER decision. Imagine a DC councilmember saying "The court said we had to do this, and we couldn't do that... but they didn't say we couldn't do THIS..." The callous disregard with which the DC Council plays the game is unbelievable. But guess what, so far, they are getting away with it. And so on, and so on.

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    ConditionThree wrote:
    Shawn wrote:
    I don't think you guys have to wait for any incorporation....you already have it.
    We really havent missed this. The 2A is unfortunately held in great distain in California and subsequently is subject to 'reasonable' restrictions. State law doesnt prohibit ownership- but limits on where and how you carry are numerous.
    Condition3,

    What is the name of the court case that cited this in challenging any gun law? If you don't have one, then somebody should file.



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    WE have One Power, thats stronger then any laws they pass.

    "Juries" a 12 man Jury can nulify any law, by saying "Not Guilty" !!!

    This happened in our history, during the "Black Laws" when sorthern states tried

    to keep black men from owning guns. But it didn't work because "Juries" kept saying

    "Not Guilty".

    We DO have more power, because we are the the people.

    However most people don't know this, and just do whatever the judge on the bench saids. Rather then knowing the law themselfs.

    "Jury Nulification" is very Important. However the judge on the bench don't fully tell them.

    The people do have the right in the" face of the law" to say "Not Guilty".

    Robin47

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    In some parts of the country, most notably Alabama, though others to a lesser degree, the judge can throw out the jury decision and implement his own decision.

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    Yeah thats right here also in California.

    One judge against 12 judges ( The Jury) Seems theres no justice anymore.

    This is why America is going under. Robin47

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    A judge however might be hard pressed to explain why he overturned the decision of 12 jurors, and I believe would be a great and speedy way to appeals.

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    Right On ! Theseus, and glad to see your still with us.

    I miss your daily updates. Hope things are working out for you OK !

    Robin47

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    Shawn wrote:
    ConditionThree wrote:
    Shawn wrote:
    I don't think you guys have to wait for any incorporation....you already have it.
    We really havent missed this. The 2A is unfortunately held in great distain in California and subsequently is subject to 'reasonable' restrictions. State law doesnt prohibit ownership- but limits on where and how you carry are numerous.

    Condition3,

    What is the name of the court case that cited this in challenging any gun law? If you don't have one, then somebody should file.
    I agree - but who wants to b the1st? How many of u are brave enuf like Christ to excerise hisRight w/o fear of being thrown in Jail?.......even though u are correct,u still may spend48 to 72 hours behind bars? It's right up there w/"everyone wants to goto Heaven but nobody's willing to die."

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    There seems to b a lot of mis-statements on this forum. So for the record:

    A) You DO NOT HAVE CONSTITUTIONAL RIGHTS...you have 'un/inalienable Rights' given to u by ur creator.

    B) Each state's constitution, and the fed constitution are NOT RULES FOR YOU - each constitution is the RULES for the respective state, and fed territory.

    C) The Cali Const clearly reads that the U.S.Const "...is the supreme law of the land." The U.S. constitution trumps all California rules, codes, legislation. The U.S. supr crt justices clearly decided in the Heller case, that the Right to bear Arms is an 'individual Right'. Citizens had this Right long before the Constitution was written, and Citizens have this Right today. PERIOD !!!!

    This decision trump ALL CALIFORNIA LAW...though u still may b thrown in a Cali jail for excerising your Rights. Are you brave enuf to risk being thrown in jail for excerising a Right??

    I wrote the LA districit Attorney's office to obtain 'clarification' of the Heller case as it pertains to my excersing my Rights here in Cal. They wrote bac, "we do not give legal advise." I walked into the DA's office in San Luis Obispo. Asked the desk clerk to see a DA to ask inquire about the Heller decision. Clerksaid, "We do not give out legal advice." I asked her, "Is killing someone illegal?" She said, "Of course it is." I asked, "I though u didn't give legal advice?"

    I then ventured in the San Luis Obispo police dept. And office said my agrument is for the courts cuz they only recognize the Cal Penal Code. Then he asked me, "What do you mean, God given Rights?" When i rolled my eyes, he then says, "What's with all this fascination w/ Rights."

    Cops are ignorant...and they are not your friends.



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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Rayce Bannon wrote:
    "What's with all this fascination w/ Rights."
    I don't know if this is more scary or more funny.

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    Campaign Veteran marshaul's Avatar
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    Rayce Bannon wrote:
    you have 'un/inalienable Rights' given to u by ur creator.* [/size][/b]
    Speak for yourself, but do not presume to speak for others. The concept of "natural rights" is clearly well over your head. Your spelling and grammar (or should I say, lack thereof) indicate as much.

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    please kindly enlighten me, where ur Rights cum from? btw (by the way), n informal email settings, i generally rite n txt type 4mat. shame u equate txt riting w/ improper grammer and the uneducated.

    peace b the journy

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    I am tired of people acting as if spelling and grammar are the measure of a persons intelligence or credibility.

    Maybe you may be one of those people that can at all times use perfect grammar, punctuation and spell at all times correctly, but that makes you no more intelligent than anyone else.

    I do though agree that as everyone should know, one does not speak for any other than the one unless given expressed permission to do so. I speak no more for you than you do for me.

    My creator is my mom and dad, and I am pretty sure that they did not give me my rights...Something they reminded me of often.

    marshaul wrote:
    Rayce Bannon wrote:
    you have 'un/inalienable Rights' given to u by ur creator.
    Speak for yourself, but do not presume to speak for others. The concept of "natural rights" is clearly well over your head. Your spelling and grammar (or should I say, lack thereof) indicate as much.

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