Lawsuit Seeks to Overturn California Open Carry Ban

[radioman]

Our rights are spelled out in the Bill of Rights, most of those rights come from nature.
From the posts I have read I would have say that you Librarian are a wise man. but still I see no right to keep and bear in CA, not in my life time, and of the 9, they will not rule on this again for a decade. on that I will bet, and I am not a betting man.

[kcbrown]

Originally Posted by Librarian

Cooley, at the google book, says (I wish google books let me cut and paste; apologies if my retyping has errors)



How is Cooley incomplete?

Cooley is incomplete because his definition is internally contradictory. This is so because one means of infringement of a right is through the enactment of laws which infringe upon it. By his definition, such an infringement is not an infringement, because his definition is using the law itself as the basis for rights.

That is the fundamental flaw with that approach. By that approach, it is impossible for a government to infringe upon the rights of the people by passing laws, because that changes the law, and therefore the set of rights.


If you insist on using the law itself as the basis for rights, then you strip the term of any useful meaning and simultaneously strip the concept of its power. That is because by doing so, you turn violation of a right into mere violation of a law, and laws can be changed whimsically.

By this argument you're putting forth, the British government was not violating the rights of this country's founders, and this country's founders therefore did not have a legitimate basis for their armed insurrection.

[Gray Peterson]

Originally Posted by radioman

If you have to buy a gun off a list, where is the right?
If you need a permit to carry a gun, where is the right?
If you have to fight in court for a right, where is that right?
I'm 55 years old and from what I have seen all we have are "words" on an old piece of paper. I.m not saying I won't stand up for them or fight for them, BUT what right do we have at this time? none.

Until McDonald, if the California Legislature repealed the preemption statute along with portions of PC12026 which allow you to possess a handgun in your own home without any license at all, San Francisco and Los Angeles would have been able to entirely ban possession of handguns in the home using their police powers and there is nothing that could have been done to stop it.

You were 11 years old when the Gun Control Act of 1968 was passed. You were 10 when the Mulford Act passed. We just got Heller and McDonald through SCOTUS, and we're working on carry.

In 1954, the Supreme Court in Brown v. Board of Education overturned racial segregation in K-12 schools, after years of preparatory rulings for colleges, enforcement of racially discriminatory land covenants, and so on. The only reason things are going so fast now is the networking we can now do with the internet. It is easy to find plaintiffs will to challenge, easy to find lawyers from out of state to challenge a local law, etc etc etc.

I strongly believe that you will be able to acquire a license to carry as a law abiding citizen by June of 2013. Considering the time it took for SCOTUS to finally stamp out de jure segregation of the south, that's lightning fast....

As for "how is it a right if we need a license", keep in mind, only 4 states allow both OC and CC without license out of 50. We need to make that number around 35 (and California will not be one of them, but every state surrounding California will be so...) in order to challenge licensing as prior restraint.

Not to mention "Off of a list" is already being challenged in Pena.

[Librarian]

Originally Posted by kcbrown

Cooley is incomplete because his definition is internally contradictory. This is so because one means of infringement of a right is through the enactment of laws which infringe upon it. By his definition, such an infringement is not an infringement, because his definition is using the law itself as the basis for rights.

That is the fundamental flaw with that approach. By that approach, it is impossible for a government to infringe upon the rights of the people by passing laws, because that changes the law, and therefore the set of rights.


If you insist on using the law itself as the basis for rights, then you strip the term of any useful meaning and simultaneously strip the concept of its power. That is because by doing so, you turn violation of a right into mere violation of a law, and laws can be changed whimsically.

By this argument you're putting forth, the British government was not violating the rights of this country's founders, and this country's founders therefore did not have a legitimate basis for their armed insurrection.

OK, so let me answer with a tautology: If there were no humans, there would be no human rights.

That sounds stupid, but it points out that human rights have a human origin - somewhere, some time, some person or group of persons have to identify 'rights'.

If you want to exclude the entirety of the legal aspect, what's the mechanism?

ETA - Jefferson:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,...

Since the last personal Representative from the Creator is ~2000 years gone, I think we need a little help.

[kcbrown]

Originally Posted by Librarian

OK, so let me answer with a tautology: If there were no humans, there would be no human rights.

That sounds stupid, but it points out that human rights have a human origin - somewhere, some time, some person or group of persons have to identify 'rights'.

No, it merely means that human rights cannot exist without humans. That doesn't necessarily mean they originate from (i.e., are created by) humans, only that they are dependent upon humans for their existence.

In reality, of course, I do agree with you: human rights are created by humans. But that's because human rights are a concept, an approach to the creation of law that can be used to achieve something approximating the maximization of liberty for people in a society.

That means that human rights precede the law. That is, the law is created with rights as its foundation. And that is why you cannot use the law itself as the source of rights. Doing that reverses the proper roles of each.

If you want to exclude the entirety of the legal aspect, what's the mechanism?

The legal aspect is excluded only from the process of identifying what is and is not a right. It is not excluded (indeed, it cannot be excluded) from the usage of the concept of rights.

ETA - Jefferson:

(emphasis mine)

The bolded bit above illustrates that the founders of the country understood that rights precede the law.

Since the last personal Representative from the Creator is ~2000 years gone, I think we need a little help.

[Librarian]

Suppose I accept that "rights precede the law" and "The legal aspect is excluded only from the process of identifying what is and is not a right."

I ask again, what mechanism can we use to identify rights?

[kcbrown]

Originally Posted by Librarian

Suppose I accept that "rights precede the law" and "The legal aspect is excluded only from the process of identifying what is and is not a right."

I ask again, what mechanism can we use to identify rights?

I would propose that we examine whether or not protection of the right being considered is necessary in order to guarantee the preservation of liberty.

That may need some fine-tuning, but I've noticed that everything we consider to be a "right" is something that, if it's not protected, would result in a considerable reduction in liberty, or at least create significant jeopardy of that happening.


I believe that the entire concept of rights ties very strongly into the presumption of liberty, and that if you don't have one, you really don't have the other.

[1911ZENSHOOTER]

[Tag]

[Librarian]

Originally Posted by kcbrown

I would propose that we examine whether or not protection of the right being considered is necessary in order to guarantee the preservation of liberty.

That may need some fine-tuning, but I've noticed that everything we consider to be a "right" is something that, if it's not protected, would result in a considerable reduction in liberty, or at least create significant jeopardy of that happening.


I believe that the entire concept of rights ties very strongly into the presumption of liberty, and that if you don't have one, you really don't have the other.

Well, that's OK, but now the goal-posts have moved. In order to identify rights, we seem to need to define 'liberty', so we can see what things support or increase it, and consider those things for eligibility to be a 'right'.

I don't think Merriam-Webster is going to help:

1: the quality or state of being free:
a : the power to do as one pleases
b : freedom from physical restraint
c : freedom from arbitrary or despotic control
d : the positive enjoyment of various social, political, or economic rights and privileges
e : the power of choice
2 a : a right or immunity enjoyed by prescription or by grant : privilege
b : permission especially to go freely within specified limits

Here are snips from Hobbes and Hume and Lock

Leviathan
"LIBERTY, or freedom, signifieth properly the absence of opposition (by opposition, I mean external impediments of motion); and may be applied no less to irrational and inanimate creatures than to rational."-Thomas Hobbes (Leviathan 1651)

Concerning Human Understanding
"By liberty, then, we can only mean a power of acting or not acting, according to the determinations of the will; this is, if we choose to remain at rest, we may; if we choose to move, we also may. Now this hypothetical liberty is universally allowed to belong to every one who is not a prisoner and in chains. Here, then, is no subject of dispute."-David Hume (Concerning Human Understanding)

Second Treatise on Government
"The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule."- John Lock (Second Treatise on Government)

Find anything you like? I'm not satisfied with these.

[radioman]

Originally Posted by Gray Peterson

Until McDonald, if the California Legislature repealed the preemption statute along with portions of PC12026 which allow you to possess a handgun in your own home without any license at all, San Francisco and Los Angeles would have been able to entirely ban possession of handguns in the home using their police powers and there is nothing that could have been done to stop it.

You were 11 years old when the Gun Control Act of 1968 was passed. You were 10 when the Mulford Act passed. We just got Heller and McDonald through SCOTUS, and we're working on carry.

In 1954, the Supreme Court in Brown v. Board of Education overturned racial segregation in K-12 schools, after years of preparatory rulings for colleges, enforcement of racially discriminatory land covenants, and so on. The only reason things are going so fast now is the networking we can now do with the internet. It is easy to find plaintiffs will to challenge, easy to find lawyers from out of state to challenge a local law, etc etc etc.

I strongly believe that you will be able to acquire a license to carry as a law abiding citizen by June of 2013. Considering the time it took for SCOTUS to finally stamp out de jure segregation of the south, that's lightning fast....

As for "how is it a right if we need a license", keep in mind, only 4 states allow both OC and CC without license out of 50. We need to make that number around 35 (and California will not be one of them, but every state surrounding California will be so...) in order to challenge licensing as prior restraint.

Not to mention "Off of a list" is already being challenged in Pena.

gray, at that age 11 and 12 I lived in san francisco with my blue collar family. mulford pissed them off, why would anyone in there right mind put an actor in office. but it will keep n****s down, so they let that slide as most did. in 68 my dad had past away, with the GCA I knew I would have to live with crime, but I know I could own a gun. the last time I bought a gun was 1986, now it's just a pain in the ***, abet I had to wait 14 days to pick it up. no HSC, no 25 bucks for DROS. still I had no right to keep and bear. not to put a damper on the hard work that you and others are putting in on this, it's more that I'm just getting old and am in poor health, and I fear that I may not live to see the day when we are free men and woman...

[dantodd]

Originally Posted by Librarian

Find anything you like? I'm not satisfied with these.

I am rather fond of Lock personally. He makes it very clear that any government is an infringement upon "rights." I think this is helpful because it reminds us of the need for "limited government." Lock, IIRC, said that self-defense is actually the first right that one abdicates when a government is formed. Self-defense in the form of a national defense and the creation of a judiciary to resolve disputes and punish crime.

Every power we grant the government is balanced by the loss of that power from the individual. If you like look at it as the power is transferred from the individual to the "people." This is why the "collective right" theory gathered so much momentum. It is also why we may never truly have access to all militia weapons in this country again. We have effectively abdicated the right to national defense away from the individuals and given it to the state.

This idea of a balancing equation is, in my mind, quite elegant and lays out a spectrum from pure individual liberty (anarchy) and pure state power (totalitarianism) very well.

[CitaDeL]

http://secure.campaigner.com/Campaig...--BldG-12DFUu9

This really didnt deserve another thread all its own, since it is the same kind of material that CN has repeatedly released as 'news' or a 'press release'. It seems clear to me that someone does not know how this game is played, much less how it is won.

[hoffmang]

Originally Posted by CitaDeL

http://secure.campaigner.com/Campaig...--BldG-12DFUu9

This really didnt deserve another thread all its own, since it is the same kind of material that CN has repeatedly released as 'news' or a 'press release'. It seems clear to me that someone does not know how this game is played, much less how it is won.

If he thinks he's taking their default he's crazy. He'll begin to learn that there are the FRCP and then there is the FRCP that the government gets away with...

But hey - who needs any skills when fighting to restore our fundamental civil rights. I mean the Black Panthers were so effective for civil rights, right?

-Gene

[HowardW56]

Originally Posted by hoffmang

If he thinks he's taking their default he's crazy. He'll begin to learn that there are the FRCP and then there is the FRCP that the government gets away with...

But hey - who needs any skills when fighting to restore our fundamental civil rights. I mean the Black Panthers were so effective for civil rights, right?

-Gene

Gene

was there ever any doubt that CN is crazy?

[hoffmang]

Originally Posted by HowardW56

Gene

was there ever any doubt that CN is crazy?

The funny part is that if he read the stuff he supposedly disdains closely he'd notice that Yolo defaulted early on in what was then Sykes v. McGinness and it doesn't matter.

-Gene

[goldrush]

Originally Posted by kcbrown

I believe that the entire concept of rights ties very strongly into the presumption of liberty, and that if you don't have one, you really don't have the other.

Eh, perhaps. I'm even more content with the complete repudiation of all rights than I am with government recognition of a priori rights. In absence of rights, people have no power, right, or authority to raise up a government. In absence of rights, any government is just a band of thugs trying to push around other people, and such a gang can be ignored or destroyed, at whim. If we scrap rights, we scrap government, and that's the happiest possible existence.

[OleCuss]

I want a minimalist government, the idea of scrapping government entirely is not advisable unless we somehow perfect the human character.

I'm not holding my breath on the perfecting the human character thing. So I'm working for the minimalist government with the most respect for freedom possible.

I'll never be very happy with government, but I recognize it is inevitable.

[kcbrown]

Originally Posted by OleCuss

I want a minimalist government, the idea of scrapping government entirely is not advisable unless we somehow perfect the human character.

I'm not holding my breath on the perfecting the human character thing. So I'm working for the minimalist government with the most respect for freedom possible.

I'll never be very happy with government, but I recognize it is inevitable.

Exactly so. Government is inherently evil, but it is a necessary evil, because it is in some people's nature to desire to violate the rights of others, and those people need to somehow be made accountable for their actions. Additionally, not all people are capable of defending their rights against all who would violate them, in part because they may not lack sufficient resources or ability to do so, and in part because some of those who would violate their rights will command much more in the way of resources than most.

It is a paradox inherent in this problem that by giving government sufficient power to protect the rights of the citizenry when the citizenry is naturally (as opposed to artificially) unable to take on that task for itself, we also give it sufficient power to take those rights away from us. It is for this reason that the power of government must be just enough to make that kind of protection possible, but not any more than that.

It is such a fine line to walk that no society has ever been able to successfully walk it for very long. But I know of no alternative that has made it possible to walk that line at all.

[fiddletown]

Wow. With posts 652 - 656 I thought we were getting back on topic. But now I seen we're back to Never-Never Land.

Oh well.

[kcbrown]

Originally Posted by fiddletown

Wow. With posts 652 - 656 I thought we were getting back on topic. But now I seen we're back to Never-Never Land.

Oh well.

It's for your own good. In fact, we're doing it just for you! Means you have more time to attend other important matters.

[Fyathyrio]

While reading comments on Emily's most recent post describing her attempt to get a gun in DC, I saw that Charles Nichols piped up somewhat randomly that he's filed his suit with a link to his page. So, I clicked it...according to http://californiarighttocarry.org/ the state's response is due Monday...is there a way we'll be able to see what they have to say?