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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel. |
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#81
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ARCHIVED Calguns Foundation Wiki here: http://web.archive.org/web/201908310...itle=Main_Page "The object of life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane."Ann Althouse: “Begin with the hypothesis that what they did is what they wanted to do. If they postured that they wanted to do something else, regard that as a con. Work from there. The world will make much more sense.” Not a lawyer, just Some Guy On The Interwebs. |
#82
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Halbrook successfully argued Printz, Small, Thompson Center and Castillo at the SCOTUS.
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#83
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-Brandon
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Brandon Combs I do not read private messages, and my inbox is usually full. If you need to reach me, please email me instead. My comments are not the official position or a statement of any organization unless stated otherwise. My comments are not legal advice; if you want or need legal advice, hire a lawyer. |
#84
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Parker, Seegars, Dearth...Halbrook torpedoing a case, and that comment about "detriment to liberty"
All this case interaction has got me a little confused...Maybe a simple recap for the dot-connecting challenged???
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WTB: SWISS & German police trade in pistols WTB: German made & proofed SIG P226R & P228R WTB: Factory cutaway pistols & rifles WTB: LAPD Ithaca M37 / CHP S&W / Other PD trade ins.... |
#85
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The usual beautiful lawyer porn from Gura. Always a great read. He does a great job of illustrating to SCOTUS that they will need to step up and "re-explain" themselves pretty darn soon, so it might as well be now!
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#86
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#87
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"The Simplified History of Second Amendment Jurisprudence, in the Twentieth and Twenty-first Centuries, with Notes on the Players" or something like that... Maybe more like two weeks.
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ARCHIVED Calguns Foundation Wiki here: http://web.archive.org/web/201908310...itle=Main_Page "The object of life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane."Ann Althouse: “Begin with the hypothesis that what they did is what they wanted to do. If they postured that they wanted to do something else, regard that as a con. Work from there. The world will make much more sense.” Not a lawyer, just Some Guy On The Interwebs. |
#88
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#89
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But that could rock! -Gene
__________________
Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#90
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Let's face facts, for the moment.
The amicus brief is an attempt to garner enough recognition/support in this case, that one Justice will call for a response from the Solicitor General's office. If this does not happen, the case is dead where it stands.
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Listings of the Current 2A Cases, over at the Firing Line. |
#91
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Note on prospective 'History" ...
What I had hoped to find was some documentation on the case selection of what NRA supported/opposed from the 1970s forward, but I'm beginning to believe I'm not enough of an insider to get that. I can certainly point to the Gura - Halbrook kerfuffle already mentioned in Seegers; Alan's response to the suggestion of consolidating Seegers with Parker is available, and it's a remarkable 'that is something up with which I shall not put!' document.
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ARCHIVED Calguns Foundation Wiki here: http://web.archive.org/web/201908310...itle=Main_Page "The object of life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane."Ann Althouse: “Begin with the hypothesis that what they did is what they wanted to do. If they postured that they wanted to do something else, regard that as a con. Work from there. The world will make much more sense.” Not a lawyer, just Some Guy On The Interwebs. |
#92
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-Gene
__________________
Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#93
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I understand that, Gene.
I'm simply stating that this is not settled, as it concerns grants of certiorari. There is still another step that must be taken. That step could happen at any time, up to and including the "Long Conference" at the end of Sept. Nor have I forgotten how long it took D.C. v. Heller to get cert. granted. We were all on pins and needles for 10 months after the decision in Palmer. After cert, it was pins and needles for another 7 months. You might remember that one...
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Listings of the Current 2A Cases, over at the Firing Line. |
#94
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Cordially, John |
#95
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Both cases have petitioned over the same core question: does the Second Amendment end at your doorstep?
From that, the assumption is made in Williams that any law requiring a permit is unconstitutional if the state would routinely deny it to qualified people; and in Masciandaro that laws prohibiting carry in public places in a national park (were) unconstitutional. Masciandaro is technically not a "sensitive place" listed in the dicta of Heller, but it was treated as such if only because some over-read the Heller dicta as a broad ability to ban arms in/on/near any place managed, owned or operated by "the government". What we call a 'sensitive place' is just a place restriction ala First Amendment jurisprudence (ironic how the opposition avoids the first amendment except when the tenets seem to help them). Williams is technically not a "permit case" because the core issue at question is whether the right extends outside the house. If it does, then the state's routine denial renders their case against Williams moot; Maryland is beyond the point of claiming Williams could qualify. They extinguished that flame several times in Woollard. We should at least grant them a thumbs-up for intellectual honesty - no games saying Williams "could have" gotten a permit. You could frame both questions differently, and in my small universe they could still take on nuances of the underlying issues at play. Meaning both cases get picked up to settle slightly different inquiries. Masciandaro is pretty much impossible to decide without at least some tightening of the Heller dicta on place restrictions. Even if they choose to split the baby - decide the core right extends outside the home and then toss the case back to the Circuit - they will need to provide more on place restrictions than a one-sentence piece of dicta from 100+ pages of opinions. Williams has nuances of the same issue - having to decide something about permits after having dispensed with the core right. That said, the Williams inquiry as written lets the court skip much of it entirely, by just agreeing with the petition and saying "the permit law in Maryland is unconstitutional to the extent it routinely restricts the issuance of permits to qualified citizens", without addressing whether a shall-issue system is even constitutional, at all. Much like Heller's footnote that the court is issuing the permit because that was the relief requested - not because the permit was required under the constitution. Note that due to the criminal nature of both cases, there is no relief sought to undo laws encumbering the right. So the Maryland law in question would still exist, though toothless. And in the case of Masciandaro, the law has already been changed. Challenges to those laws (or similar laws) would still stand. They would just be easier to decide. If you want the case most likely to deliver a "two-fer" on public RKBA + some bonus question, then Masciandaro is the one with the most opportunity to deliver. Of course, that "feature" is something that could dissuade the court from taking it up. I am not qualified to read those tea leaves and leave such prognostications to those with a clue or an anonymous keyboard and a penchant for good guessing. The Court could just decide RKBA with either case and toss the secondary questions back to their respective courts for further evaluation. Wash, Rinse, Repeat. I obviously operate under the assumption the core right extends outside the home in some strong (if not fundamental) form. If this assumption is off, these two cases will all but sink our movement from a litigation standpoint. It'll be open season for gun control and Bloomberg can party like it is 1999.
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------ Some Guy In Maryland Last edited by Patrick-2; 08-02-2011 at 9:49 AM.. |
#96
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Thanks, Patrick. Your thoughtful comments are always deeply appreciated. It never occurred to me that Williams / Masciandaro constitute most of the remaining marbles. If we win, it doesn't mean the game is entirely over, but if we lose it's a grievous, grievous wound.
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#97
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I still can't envision what the grant of relief in Williams is supposed to look like? Anyone convicted of conceal carry where permits are not objective is not guilty? Only the law abiding? It just feels darn awkward. Remember that one quite possible outcome is no cert grant on either of these in wait for the many other, simpler cases coming. -Gene
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Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#98
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Oh well. It's not like a bunch of Americans will be getting mugged, robbed, raped, and/or murdered in the mean time....
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240+ examples of CCWs Saving Lives. Last edited by Paladin; 08-02-2011 at 10:15 PM.. Reason: changed from "CAians" to "Americans" since national impact |
#99
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As you say, Woollard is keeping them honest.
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It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque. - DC v. Heller NRA Member / CRPA Member / SAF Member / San Diego CCW Sponsor |
#100
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Prior convictions could be challenged, but a determination on those otherwise prohibited would need to be made. I suspect most of those convicted are probably prohibited for prior acts anyway (but have no data on that at hand), but we are sure to see some legitimate challenges a sure to make their way up. It might be awkward, but so was Miranda. There is a whole slew of criminal cases out there ahead of all the civil suits. How many more criminal convictions are out there that failed within the state systems, that are eligible to petition for cert? Probably quite a few. Those cases have years of legacy behind them. For the same reasons most of the 1A jurisprudence comes from those who were defending themselves from government fines, convictions and the like, we are going to see the criminal pool take a strong role in 2A cases. I agree it might get ugly, but history says we cannot avoid it. My first concern is not the purity of the case or defendant, but the capability of counsel flying the flag.
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------ Some Guy In Maryland Last edited by Patrick-2; 08-03-2011 at 4:35 AM.. |
#101
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-Gene
__________________
Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#102
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__________________
Brandon Combs I do not read private messages, and my inbox is usually full. If you need to reach me, please email me instead. My comments are not the official position or a statement of any organization unless stated otherwise. My comments are not legal advice; if you want or need legal advice, hire a lawyer. |
#103
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Theoretically (and what I hope for), the court could find that no permit is needed. At least for open carry. Quote:
Yup. Quote:
Always the key point. The Raisuli
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
#104
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And yet another attempt of mine to subtly sidetrack a thread fails...
For the record: we fly our flags full staff here in the Chesapeake. Except when we're drunk. Which is often. Back on track: I think Miranda and Terry are both decent models for what happens when the Court limits (or expands) what law-enforcement can do in a given situation. With no ability to enforce, laws against the condition simply fall to the wayside. Our friends Williams and Masciandaro did nothing wrong. Their only crime was the gun possession. Both 'clean' otherwise. Miranda, on the other hand...
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------ Some Guy In Maryland Last edited by Patrick-2; 08-04-2011 at 4:49 AM.. |
#105
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Kennedy isn't going to limit the state's ability to dissuade young entrepreneurs in the pharmaceuticals business from getting their first gun fight for free. -Gene
__________________
Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#106
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I remember watching a video on one of the gun forums. As I rememeber it was a UOC'er and a anti gun politician. The Politician didn't want anyone legally open carrying because some undocumented gang member would be able to carry also.
I remember thinking....He probably already has a gun and is carrying it concealed illegally and could care less about any law. I would think that is a police problem, not a constitutional question. Granted, I don't think like a judge. |
#107
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Here is a valid way a judge can think.
1. Bad men don't go to sheriffs offices and give fingerprints even if they're not yet felons. 2. Unlicensed open carry would mean that a cop could do nothing about a known banger/dealer tough standing there strapped until he committed his first felony. 3. The unlawful will conceal illegally if that's their only option and pretty much no matter what. So banning open carry while only allowing licensed concealed carry does have the benefit of stopping 2. -Gene
__________________
Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#108
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I'm hoping for something like Nevada has, only because something like Arizona has won't happen in my lifetime. |
#109
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So either the cop actually has probable cause for a search, in which case the cop could easily catch the guy on the very felony you speak of, or the cop claims to have probable cause to search when he really doesn't. I doubt you would be happy about the latter, but I won't be surprised if a judge that thinks the way you outline above would be happy about it.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. Last edited by kcbrown; 08-05-2011 at 12:16 PM.. |
#110
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I'm pretty sure we have an abundance of them here in California and in the 9th Circuit.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#111
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#112
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Maryland concedes in all other civil challenges that ordinary citizens cannot receive a permit; that the acknowledged goal of Maryland is to keep permits from even lawful persons; and that living in a violent neighborhood is not cause enough. Telling is that Maryland claims Williams should have applied for a permit, but nowhere do they actually suggest he would get one. The permit application process is a red herring tossed as a desperation measure. There is enough jurisprudence from SCOTUS to settle that.
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Local gang-bangers are not lawful persons. If they have a record, they cannot receive a permit under any of the proposed methodologies. If they do not have a record, then they are not gang-bangers under the law and are therefore eligible for a permit, unless we want to keep the subjective "Good Moral Character" standards in place, where we evaluate the individual's need and character to weed out those (black|hispanic|poor|trash) people "who are not the type of person that should have a gun". Rather retro and obviously not what you were suggesting. But I wanted to point out where that thinking could go in the head of some of our politicians. Even in the so-called Constitutional Carry movement, dangerous persons are not able to lawfully carry, even when the supposed proof (a permit) of lawfulness is not required. The only thing that I think Constitutional Carry gets right is removing the presumption of criminality for carry. The rest is wishful thinking best targeted to the legislatures. But I digress. The risk May-Issue states face (and the one I was trying to get at) is that Williams removes enforcement measures for possession to the extent those measures enforce unconstitutional restrictions. This would be a temporary effect, for sure. I cannot imagine California or Maryland letting stand conditions that essentially create a no-permit carry condition. Given the choice between "unconstitutionally subjective permit-system that we cannot enforce" and "shall-issue that we can probably enforce", they are going to move towards a shall-issue system as quick as their system allows. Maryland's executive could do that by fiat. California would probably require a bit more work, but even San Francisco would race to shall-issue given those options. Overturning a criminal conviction for carry, when a permit is unavailable, puts the onus on the subjective system to become objective as quickly as possible. It puts the state in the position of actor, instead of our side having to constantly attack whatever they come up with. It also creates a strong precedent that if a restriction goes too far, the court says the prosecution is unconstitutional. Theoretically that is always the case, but until it actually happens it hasn't happened. Quote:
Gun owners are not more likely to commit crimes ust because they have the gun. Nothing in Williams, Masciandaro or any other case I have seen suggests a system where unlawful people are given passes on murder, robbery or drug dealing. Or for that matter, beating their children. I may be alone in seeing Masciandaro and Williams as two different and critically important cases. I don't understand the need for a horse-race. I understand that each case requires some kind of finding on public carry, but even with that dispensed each case also requires another finding. Whether illusory permits or places-that-are-kinda-sensitive, the case does not end with "Yup. 2a extends outside the home." One thing I like about both cert petitions is they do not stop with public RKBA. Each brings their particular issue to the front and makes clarification of 2A pretty much an entry condition. In my mind, my preferred opinions from the court would dispense with public 2A and then spend most of it's time focused on the place and illusory permit issues. We all claim Heller solved for the public RKBA problem, yet expect these cases to solve it again. Recognizing I am alone on the branch here, this suggests I am either rather brilliant, confused, or more likely - just wrong. That said, this is one time I'd really like to be able to say, "I told you so." So I know I may be tilting at windmills, hoping that the court picks up both questions. We'll see. A Google-Worthy Caveat... Everyone reading this friendly back and forth needs to understand something important: Gene and I and others are jousting some theoretical outcomes. We need to be really clear that Mr. Williams is not gang-banger, drug peddler or felon. He is poor and lives in a neighborhood under a consent decree with the Justice Department for harassing minorities on the street and in cars, hoping to catch them doing something. His county invented the term "Driving While Black". Mr. Williams saved up his limited resources, bought a gun at a gun shop, filled out the paperwork, submitted the shell casings to the state, waited for Maryland to return with a "Not Disapproved" finding, then he picked up his gun and took it to his girlfriend's house. Two weeks later he tried to take it to his home, but got nervous when a police officer stared him down at a bus stop. His public defender literally stammered his way through his defense in Maryland's top court. It was cringe worthy. If someone Googles this thread and finds the name of Mr. Williams, I don't want them walking away thinking he is a bad guy, just because we posit scenarios that might somehow extend from resolution of his case. From what I can tell, he is like most of us. The state busted him for doing what most of would agree is "nothing wrong."
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------ Some Guy In Maryland |
#113
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Wouldn't is just be a simple matter of altering the laws to state that "Posession of a firearm WHILE engaged in, or with INTENT to engage in, other criminal activity, OR while in POSESSION of illegal drugs is a crime"? So you remove "mere posession" of the firearm as presumption of criminality, and simply require that the posessor must be engaged in or have intent to engage in criminal with and/or while in posession of the firearm. Problem solved right?
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"Freedom begins with an act of defiance" Quote for the day: Quote:
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#114
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State and federal law already take into consideration the criminal use of a weapon in the commission of a crime. The effect varies by jurisdiction, but generally it amplifies the charge and in many cases kicks in mandatory minimum (and severe) sentences. Baltimore targets gun crimes specifically and implements mandatory minimums for violent crime with guns. It keep some people off the streets, but they cannot catch all of them. I think Virginia has a minimum 5 year sentence for criminal use of a gun.
We don't need to create laws criminalizing criminal behavior. We got that already. We are at the point where we need to legally differentiate between criminal use and defensive carry of arms. We know who should not be armed. For them the existing rules apply. The rest of us are not the problem. The problem are systems that put poor black people in jail for taking their lawfully acquired handgun home, but somehow let's the rich white banker walk from an airport security line fully armed with nothing but a smile and warning. Both of these are actual scenes from Maryland this year. We like to talk in theory, but there is at least one guy looking at a year in maximum security for doing nothing wrong. When it comes to cert petitions, there is no better case in the world to end his persecution. For him, this case is exceptionally small and has nothing to do with a larger movement. I hope his counsel remembers that. If we believe that our system is aligned with the interests of its citizens, the Supreme Court needs to take these criminal cases, even if they wish they had gotten slower-moving civil cases next year that cover everything from English Common Law to modern interpretations of the 14th Amendment. I read the words of Justice Thomas in McDonald; this is not a game to him. The role of the court goes beyond legal chessboard actions. Sometimes they gotta clean up a mess. Again, I am tilting at windmills a bit. Off the soapbox (for now)!!!
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------ Some Guy In Maryland Last edited by Patrick-2; 08-05-2011 at 8:27 AM.. |
#115
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Conversely......if I choose to arm myself with any of those "tools" solely for the purpose of lawful self-defense.....and I'm doing nothing else wrong, then who should care if I go for a walk at night with my trusty Louisville Slugger? I think that really is an issue in CA, because not only is carrying a firearm impossible or nearly impossible for most people in the state, but the long list of prohibited weapons in 12020, remove from lawful possession/use just about every other viable defensive tool there is also. So is the guy who decides to rape/rob/murder tonight really gonna care that it's a felony to also use a baseball bat? Uhh......he is already intent on committing a violent crime, why would he give a crap about what weapons are lawful or not? Is it somehow less offensive to society for a murder to use his bare hands to stangle someone, or his feet to kick them to death? Murder is murder.....why does it matter how it is actually carried out? Criminalize the act or intent......not the tool. ETA: Quite simply it seems the POV of courts and legislators needs to be....if an item can have a lawful purpose then you can't criminalize the item, you can only criminalize unlawful acts committed with that lawful item.
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"Freedom begins with an act of defiance" Quote for the day: Quote:
Last edited by Untamed1972; 08-05-2011 at 8:54 AM.. |
#116
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The theoretical debate is about what SCOTUS has to work with amongst these cases so far. -Gene
__________________
Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#117
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This is why I prefer the Masciandaro petition. No suspicious behavior to hang the petitioner. |
#118
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He was afraid and rightfully so. His attorney said as much. Imagine legally owning a gun and having absolutely no way to to legally transport it. That what we have in MD as I understand it.
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www.christopherjhoffman.com The Second Amendment is the one right that is so fundamental that the inability to exercise it, should the need arise, would render all other rights null and void. Dead people have no rights. Magna est veritas et praevalebit Last edited by Maestro Pistolero; 08-06-2011 at 6:34 AM.. |
#119
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Hmmm. Getting way ahead of things, this inspires a thought. I'm going to have to work on it a bit before I present it though. Mostly just wanted to say that I don't think you're tilting at windmills. Your analysis looks spot on to me. But then, INAL. The Raisuli
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
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