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Thread: Does the Fed & Constitution preempt 12031e ?

  1. #1
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    Does the Fed & Constitution preempt 12031e ?

    Here is an article with court cites, dealing with mining and laws.
    I think with Mc Donald done now, and the violations of the e-checks 4-A.
    That 12031 e is already Preempted by these court cites in the firt part of this article.
    Read the first part, with the thinking, of no LOC, and the unwillingness of CCW's in
    this state. We should have the right to LOC as that's the only way to effect our self-protection
    properly. What do you think ?

    Robin47

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  2. #2
    Regular Member Lawful Aim's Avatar
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    They absolutely preempt!

    "A statute does not trump the Constitution."
    People v. Ortiz, (1995) 32 Cal.App.4th at p. 292, fn. 2
    Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163

    A statutory privilege cannot override a defendant's constitutional
    right. People v. Reber, (1986) 177 Cal.App.3d. 523 [223 Cal.Rptr.
    139}; Vela v. Superior Ct, 208 Cal.App.3d. 141 [255 Cal.Rptr. 921],
    however, "the judiciary has a solemn obligation to insure that the
    constitutional right of an accused to a fair trial is realized. If
    that right would be thwarted by enforcement of a statute, the state
    ...must yield."
    Vela v. Superior Ct., 208 Cal.App.3d. 141 [255 Cal.Rptr. 921

    Obviously, administrative agencies, like police officers must obey
    the Constitution and may not deprive persons of constitutional rights.
    Southern Pac. Transportation Co. v. Public Utilities Com., 18 Cal.3d 308
    [S.F. No. 23217. Supreme Court of California. November 23, 1976.]
    The world is a dangerous place. Not because of the people who are evil; but because of the people who don't do anything about it. -Albert Einstein
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    In theory yes, in reality, no!

    Robin 47,

    Constitutional law is the only supreme law of the land. In theory, it is beautiful.

    However, we have many people in political office, the judiciary, and the beaurocracies who don't believe in the Constitution as supreme law. They believe the Constitution limits their ability to control the people, and therefore, create utopia. I know my last statement is politically charged, and some who still feel an emotional bond to liberalism, will have a knee-jerk reaction, but my statement is true.

    Please, be my guest, violate 12031.

    I will send what little change I have left after Obamanomics to support your legal defense. Gird your loins, because our western judicial system will let you rot in jail while your appeals go to SCOTUS. If you are lucky, Scalia, Roberts, Alito, and Thomas will still be on the court. If Kennedy survives for your SCOTUS review, you had better hope that he woke-up the day "he" rules on your case on the conservative side of his bed.

    But don't worry, you will have a chance to exercise, get free food, have a crappy bed, and all the sex you want with Bubba, while you rot in jail.

    In the interim, our only hope is to move to a red state where the entire Bill of Rights is taken seriously.

    Our only hope of survival is our red states. They are challenging the doctrine that all federal law and regulation preempt state law. The liberty lovers of red states are voting to nullify Obamacare, they are voting to require birth certs and passport review of presidential candidates, they are voting to fight the "liberal" interpretation of the "commerce" clause. They are also voting to uphold and strengthen 2A. They are fighting the federal gubmint in the courts to regain their 10A rights.

    Loisianna's legislature was democrat after the midterms; however, the legislature has recently switched to republican because conservative "blue-dog" democrats have switched to republican. Other states are seeing "blue-dog" switches. Republicrats are bozos, but they vote 70% of the time for liberty. Demicans vote 95% for big governemnt and for the creation of powerless people.

    Until we gain jail-term penalties for blatant violations of Constitutional law, the status quo will survive in blue states, and even some red states.

    Reality sucks!

    markm
    Last edited by MarkBofRAdvocate; 02-08-2011 at 11:23 AM. Reason: Added: ...to regain their 10A rights.

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    Regular Member Motofixxer's Avatar
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    Well hopefully with any encounter you have a tape recorder, then simply ask. Are you investigating a crime? The officer will likely say no. Then state something like the constitution requires RAS of a crime in order to search a person or seize property. You already stated you aren't investigating a crime so any evidence obtained after that will be tossed out of court. Including any identifying documents, or charges etc. Constitutional Law always trumps local codes or statutes. Then say I have no need for your services, have a nice day. Then turn and walk away.
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    Regular Member mjones's Avatar
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    Unfortunately, the exact same arguments have been made in CA and across the nation for Sobriety Checkpoints, Mobile Smog Checkpoints, Weight Stations etc and all have been held up as constitutional

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    Courts are always looking for "Intent" therefore a Class Action law suit from us, under
    Title 42, section 1983 "Deprivation of rights under color of law". (12031-e)
    and file it for around $85.00 in federal court in Sacramento.
    Since CCW's are routinely denied, and are not needed, to exercise your 2A anyway.

    I really don't believe we need to wait for a bust on the 12031'e, in order to fix this situation.
    The only way to protect yourself is with a Loaded gun not UOC. It must be a functional firearm, LOC.
    The right to Keep and Bear, don't mean unloaded.
    12031-e is a Moron law ! And violates your 4th.

    Robin47

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    Regular Member mjones's Avatar
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    All of them are a defacto suspicionless detention if you aren't free to go...

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    Quote Originally Posted by mjones View Post
    All of them are a defacto suspicionless detention if you aren't free to go...
    mjones,

    Your point of view is correct. Rationalizing that your 4A rights are being upheld at a check point because LEO needs RAS to "further" detain and investigate your sobriety condition is ridiculous. Our Constitutional rights have been infringed in so many ways.

    As for a class action suit having standing, I don't know about that one. All a judge has to do is cite the Peruta ruling. California is giving us an option and Delong stated that a 12031(e) is not an embarassing or a time consuming ordeal; THIS ALL EQUALS NO STANDING FOR YOUR LAWSUIT!

    However, a class action suit is a good tactic and should be tried. It does not hurt to try.

    markm

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    Quote Originally Posted by MarkBofRAdvocate View Post
    mjones,

    Your point of view is correct. Rationalizing that your 4A rights are being upheld at a check point because LEO needs RAS to "further" detain and investigate your sobriety condition is ridiculous. Our Constitutional rights have been infringed in so many ways.

    As for a class action suit having standing, I don't know about that one. All a judge has to do is cite the Peruta ruling. California is giving us an option and Delong stated that a 12031(e) is not an embarassing or a time consuming ordeal; THIS ALL EQUALS NO STANDING FOR YOUR LAWSUIT!

    However, a class action suit is a good tactic and should be tried. It does not hurt to try.

    markm
    Well the way I see it is, It would not have to be a "Class Action suit",
    That was how the miners did it in my first post.
    And they are suing the state for the Dredging ban.
    "However" my Idea is to sue the LEO's who are violating your 4-A.
    Now we know its not their fault, as most are "Just doing their Job".
    However It would be filed in Federal Court, and then a "Decision" would have to
    be made on the PC-12031e., The "Constitutionality "of such a law would be under fire.
    Taking into consideration the Mc Donald ruling.

    The poor LEO is just doing his job, but is faced with the U.S. Title 42 Section 1983 I believe.
    That's a $5,000 or $10,000 fine.
    Im not out to get LEO's, but since, there the ones who have to enforce these bad laws,
    then the state would have to Reconsider that law, and the Federal court would help them
    make that decision as to Constitutionality of such a law.
    Also as mentioned the Mc Donald case, would come up.
    What do you think of that Idea ?

    Robin47

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    Quote Originally Posted by Robin47 View Post
    Well the way I see it is, It would not have to be a "Class Action suit",
    That was how the miners did it in my first post.
    And they are suing the state for the Dredging ban.
    "However" my Idea is to sue the LEO's who are violating your 4-A.
    Now we know its not their fault, as most are "Just doing their Job".
    However It would be filed in Federal Court, and then a "Decision" would have to
    be made on the PC-12031e., The "Constitutionality "of such a law would be under fire.
    Taking into consideration the Mc Donald ruling.

    The poor LEO is just doing his job, but is faced with the U.S. Title 42 Section 1983 I believe.
    That's a $5,000 or $10,000 fine.
    Im not out to get LEO's, but since, there the ones who have to enforce these bad laws,
    then the state would have to Reconsider that law, and the Federal court would help them
    make that decision as to Constitutionality of such a law.
    Also as mentioned the Mc Donald case, would come up.
    What do you think of that Idea ?

    Robin47
    Hey Robin47,

    I think your tactic would be thrown-out on summary motion. Case law for 12031(e) is against us; therefore, perfecting a claim under 42 USC 1983 would be difficult (IMHO, IANL).

    In order to win a section 1983 lawsuit, the court must be provided with examples of "clearly established" case law that any LEO should have known, and been completely familiar with. Current case law states that 12031 is legal. The Peruta ruling was not regarding 12031; notwithstanding, a defendant's lawyer would surely cite Judge Gonzales because of the logic that she used to rule in favor of the San Diego Police Chief.

    First, a ruling would have to strike-down 12031(e), and then you could sue LEO who (e) checks you under 42 USC 1983, only after 12031(e) became unconstitutional.

    I am very interested in these tactics, so please explain how I am wrong and how your plan would work?

    markm

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    Quote Originally Posted by MarkBofRAdvocate View Post
    Hey Robin47,

    I think your tactic would be thrown-out on summary motion. Case law for 12031(e) is against us; therefore, perfecting a claim under 42 USC 1983 would be difficult (IMHO, IANL).

    In order to win a section 1983 lawsuit, the court must be provided with examples of "clearly established" case law that any LEO should have known, and been completely familiar with. Current case law states that 12031 is legal. The Peruta ruling was not regarding 12031; notwithstanding, a defendant's lawyer would surely cite Judge Gonzales because of the logic that she used to rule in favor of the San Diego Police Chief.

    First, a ruling would have to strike-down 12031(e), and then you could sue LEO who (e) checks you under 42 USC 1983, only after 12031(e) became unconstitutional.

    I am very interested in these tactics, so please explain how I am wrong and how your plan would work?

    markm
    I think the Federal court, in Sac would have to look at the LEO and ask about the 4th violation, of which he would
    state it was his job to do.
    Then making a ruling on the 2-A and 4-A violations.
    2-A as being an "Infringement to your 2-A rights", then the law of 12031e comes under attack as being unconstitutional.
    Blacks law book says of Infringement as "Messing with in any form or fashion".
    12031e causes 2 violations not just one.
    The BoA is also by oath sworn by those who take office in this state.
    12031e is a direct violation of Infringement in the 2-A.
    That's "Excess of Authority" under color of law !
    Anyway it must be challenged, or we have no rights at all.

    Robin47

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    Quote Originally Posted by Robin47 View Post
    I think the Federal court, in Sac would have to look at the LEO and ask about the 4th violation, of which he would
    state it was his job to do.
    Then making a ruling on the 2-A and 4-A violations.
    2-A as being an "Infringement to your 2-A rights", then the law of 12031e comes under attack as being unconstitutional.
    Blacks law book says of Infringement as "Messing with in any form or fashion".
    12031e causes 2 violations not just one.
    The BoA is also by oath sworn by those who take office in this state.
    12031e is a direct violation of Infringement in the 2-A.
    That's "Excess of Authority" under color of law !
    Anyway it must be challenged, or we have no rights at all.

    Robin47

    You know this thread and another thread got all twisted up together in my head as I was thinking sitting up into the wee hours of the morning.

    We all know that 12031(g) states that a firearm is considered loaded when it has an "unexpended ammo" in it right?

    Well what about snapcaps as those are OBVIOUSLY not any way shape or form of "unexpended ammo"?

    So if that is the case couldn't someone (sorry my present employer wouldn't like me challenging them in court over this) paint their snap caps a combination of copper and brass (rustoleum or something like that might work)?

    It would still not be loaded with "unexpended ammo" and would thus not only create a wrongful imprisonment/false arrest claim, but it would also lead to proving in court (or at least giving us a forum in court) to be able to deal with the 4A violations of echecks.

    Or is there something I am just totally missing in some way shape or form?
    "And shepherds we shall be, for Thee, my Lord, for Thee.
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    Regular Member Gundude's Avatar
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    Snap caps are not ammo. It would be the same as putting a chap stick in the chamber.

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    Regular Member Nevada carrier's Avatar
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    12031(e) is not an embarassing or a time consuming ordeal; THIS ALL EQUALS NO STANDING FOR YOUR LAWSUIT!
    The California justice system needs to come to terms with the simple concept that the Fourth Amendment doesn't excuse warrantless, non-consensual searches so long as they are not embarrassing or time consuming. A search is a search! I don't care if it takes ten seconds or 10 hours, looking at the bottom of my shoe or the bottom of my nut sack! If I don't consent, and they don't have a warrant, the fourth amendment must apply!
    Last edited by Nevada carrier; 02-14-2011 at 09:09 AM.

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    You are correct; BUT...

    Quote Originally Posted by Nevada carrier View Post
    The California justice system needs to come to terms with the simple concept that the Fourth Amendment doesn't excuse warrantless, non-consensual searches so long as they are not embarrassing or time consuming. A search is a search! I don't care if it takes ten seconds or 10 hours, looking at the bottom of my shoe or the bottom of my nut sack! If I don't consent, and they don't have a warrant, the fourth amendment must apply!
    Hey Nevada Carrier,

    You are correct; however, the reality of the situation is different. We have allowed snakes to slowly eat away our creator granted and Constitutionally garaunteed rights. These snakes are liberals and republicrats. Republicans who work to "get-along-with" progressives are our biggest problem.

    markm

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    Quote Originally Posted by Robin47 View Post
    I think the Federal court, in Sac would have to look at the LEO and ask about the 4th violation, of which he would
    state it was his job to do.
    Then making a ruling on the 2-A and 4-A violations.
    2-A as being an "Infringement to your 2-A rights", then the law of 12031e comes under attack as being unconstitutional.
    Blacks law book says of Infringement as "Messing with in any form or fashion".
    12031e causes 2 violations not just one.
    The BoA is also by oath sworn by those who take office in this state.
    12031e is a direct violation of Infringement in the 2-A.
    That's "Excess of Authority" under color of law !
    Anyway it must be challenged, or we have no rights at all.

    Robin47
    Then one could just bring up nurumberg case law which basically decided that if violating the laws of a treaty or country was involved in doing your job then that was not an adequate defense and you could still be punished.

    As 12031 violates established laws in this country, the 4A then that SHOULD be sufficient enough to get a conviction in a perfect system.

    Unfortunately we all know just how perfect that system is.....
    "And shepherds we shall be, for Thee, my Lord, for Thee.
    Power hath descended forth from Thy hand, that our feet may swiftly carry out Thy command.
    So we shall flow a river forth to Thee and teeming with souls shall it ever be.
    E nomine Patri, et Filii, et Spiritus Sancti."


    "If the rest of the world says: 'War,' I can only say: 'Very well. I do not want war, but no one, however peaceable, can live in peace if his neighbor intends to force a quarrel.'" - Adolf Hitler...

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    Quote Originally Posted by devildoc5 View Post
    A

    Then one could just bring up nurumberg case law which basically decided that if violating the laws of a treaty or country was involved in doing your job then that was not an adequate defense and you could still be punished.

    As 12031 violates established laws in this country, the 4A then that SHOULD be sufficient enough to get a conviction in a perfect system.

    Unfortunately we all know just how perfect that system is.....
    Yep your right on ! Nevada Carrier is also right.
    To bad there's so many oath breakers willing to bring this country down.
    However in my research I did come across, a new law, that also makes it illegal for retired LEO's
    to CCW in other states to in GFSZ's , unless its the home state that gave them the CCW.
    The state might honor the CCW, but not in a GFSZ.
    Making the GFSZ, legal only to LEO's on duty !
    So now they to are having to face a 5 years in prison, and a loss of gun rights for life.
    That's the penalty, for the first offense.
    Like my Grandma used to say " What comes around, goes around".

    The Constitution is or "was" the law of the land at one time.
    And a violation of the 4-A is real bad.
    I don't have a lot of money, to fight a 12031e, but I guess we will just have to wait and see.
    I did write my Congressman, and ask if he would join the other states in the 10th Amendment fight
    and our 2-A rights as many other states are now doing, the Firearm Freedom Act ( FFA)
    We should "All" email or write for this same thing.
    Look it up ! www.firearmsfreedomact.com

    Robin47

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    Quote Originally Posted by MarkBofRAdvocate View Post
    mjones,

    Your point of view is correct. Rationalizing that your 4A rights are being upheld at a check point because LEO needs RAS to "further" detain and investigate your sobriety condition is ridiculous. Our Constitutional rights have been infringed in so many ways.

    As for a class action suit having standing, I don't know about that one. All a judge has to do is cite the Peruta ruling. California is giving us an option and Delong stated that a 12031(e) is not an embarassing or a time consuming ordeal; THIS ALL EQUALS NO STANDING FOR YOUR LAWSUIT!

    However, a class action suit is a good tactic and should be tried. It does not hurt to try.

    markm
    Who has two thumbs and standing to challenge 12031(e)? This guy!


  19. #19
    Regular Member Syst3m Ov3rrid3's Avatar
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    Quote Originally Posted by MarkBofRAdvocate View Post
    But don't worry, you will have a chance to exercise, get free food, have a crappy bed, and all the sex you want with Bubba, while you rot in jail.
    markm
    Or Big Bob from Guantanamo Bay..

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    Quote Originally Posted by Syst3m Ov3rrid3 View Post
    Or Big Bob from Guantanamo Bay..
    It would probably be closer to "meatgrinder Mohammed" from Guantanamo Bay....
    "And shepherds we shall be, for Thee, my Lord, for Thee.
    Power hath descended forth from Thy hand, that our feet may swiftly carry out Thy command.
    So we shall flow a river forth to Thee and teeming with souls shall it ever be.
    E nomine Patri, et Filii, et Spiritus Sancti."


    "If the rest of the world says: 'War,' I can only say: 'Very well. I do not want war, but no one, however peaceable, can live in peace if his neighbor intends to force a quarrel.'" - Adolf Hitler...

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    Regular Member Syst3m Ov3rrid3's Avatar
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    haha yeah probably.

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    Well you all could be right I found out some more things in my research lately here it is.
    When the "Roberti-Roos (AWCA) " went into effect we lost more then our 2-A.
    Check it out ! The guy is right !
    Sad ! Robin47

    http://www.keepandbeararms.com/newsa...&articleid=305

  23. #23
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    Quote Originally Posted by Robin47 View Post
    Well you all could be right I found out some more things in my research lately here it is.
    When the "Roberti-Roos (AWCA) " went into effect we lost more then our 2-A.
    Check it out:

    "Mwah wah wah, mah wah mwha wah wah, mah (peanuts style)"
    If you are an anti gun activist or supporter of such, did you miss it while you were reveling in your personal win?

    Hello, Robin47! Apparently you and who/whatever you're coming from missed the following: "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."

    SCOTUS has HELD that this is an INDIVIDUAL right. Did you miss that, Robin47?
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

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    Quote Originally Posted by since9 View Post
    If you are an anti gun activist or supporter of such, did you miss it while you were reveling in your personal win?

    Hello, Robin47! Apparently you and who/whatever you're coming from missed the following: "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."

    SCOTUS has HELD that this is an INDIVIDUAL right. Did you miss that, Robin47?
    Yeah I knew that back in 1958.
    The part YOU missed is in the article about Roberti-Roo and the passing of that law in Kali.
    Go back click on and read the article !
    What its saying is 'Not only the 2-A, but all your Bill of Rights in Kali are "Gone"!
    They have the Enforcers, and can pass anything they want to.
    Who will stop them ?

    Yes we resist with our OC-ing and exercising our rights as best as we can, but its getting harder
    to live free in this state by the minute.
    California is a "Test State" for our whole country, think about it !
    Anyway keep up the good fight and Carry-on !

    Robin47

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