Heller case
- Thread starter BerettaNut92
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Heller by itself probably won't help Californians much; but it might lay the groundwork for a case that will. You can find out more about it in the stickied thread titled "Heller links and updates" at the top of Legal.
First, go to this link:
http://www4.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00000311----000-.html
Under the U.S. Code, Title 10.311 all able-bodied male citizens with few exceptions, between the ages of 17 to 45, are legally obligated to be members of the Militia of the United States. As part of this obligation they are required to arm themselves with an appropriate military small arm. In U.S. v. Miller the SCOTUS repeatedly cited 18th century Colonial statutes that required Militiamen to provide their own arms, ammunition and related accessories, but ruled that there was no evidence that a sawed-off shotgun had any militia application. Had such evidence been provided the ruling might have been different.
It is obvious that if a male resident of California (or any other state) within the cited age limits, is denied the right to purchase and posses a suitable military-style small arm they cannot fulfill their obligation as a member of the Unorganized Militia of the United States.
Anyway, I have often wondered why a person denied the right to own a military-style small arm hasn’t brought a case. Clearly state and local statutes that ban these firearms are an obvious infringement.
http://www4.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00000311----000-.html
Under the U.S. Code, Title 10.311 all able-bodied male citizens with few exceptions, between the ages of 17 to 45, are legally obligated to be members of the Militia of the United States. As part of this obligation they are required to arm themselves with an appropriate military small arm. In U.S. v. Miller the SCOTUS repeatedly cited 18th century Colonial statutes that required Militiamen to provide their own arms, ammunition and related accessories, but ruled that there was no evidence that a sawed-off shotgun had any militia application. Had such evidence been provided the ruling might have been different.
It is obvious that if a male resident of California (or any other state) within the cited age limits, is denied the right to purchase and posses a suitable military-style small arm they cannot fulfill their obligation as a member of the Unorganized Militia of the United States.
Anyway, I have often wondered why a person denied the right to own a military-style small arm hasn’t brought a case. Clearly state and local statutes that ban these firearms are an obvious infringement.
The one sure thing that Heller will do for any state in the 9th circus is remove the impediment of citizens and standing on 2nd Amendment cases via Hickman v. Bock. After that, case by case basis.
Hold on here.
There's two issues that are going to need to be brought before the Supremes.
First is "is it an individual right?". Heller/Parker will be dealing with that, with any luck.
Second is "does it apply to the states"? See, right now three pieces of the Bill Of Rights have not yet been applied to the states via a doctrine cooked up in the early 20th century called "selective incorporation". One by one, pieces of the BoR have been "incorporated" against the states. The three pieces left:
a) The 3rd Amendment (nobody "quarters troops" in homes in peacetime anymore...).
b) The right to a grand jury indictment in major cases. States like California indict on judge's signatures. (Which is a problem because it's crippled the Grand Jury system in general.)
c) The 2nd Amendment.
The Parker/Heller case was brought in DC so as to AVOID the incorporation issue. DC isn't a state. So it's very possible we could get a ruling that has a pro-RKBA effect in DC but means nothing in California UNTIL we do another case fixing the incorporation issue - getting the Supremes to decide that the 2nd is a "fundamental due process right" that the states can't mess with via the 14th Amendment.
The 14th Amendment was *supposed* to apply the Bill Of Rights to the states - specifically including the 2nd, as the authors of the 14th in 1868 were trying to give newly freed slaves a measure of defense against the proto-KKK (and very specifically said so). But the Supreme Court in a series of ugly decisions between 1870 and 1900 gutted the entire 14th top to bottom. Only in the 20th century did the court start rebuilding it - but only "selectively", in pieces, apparently based on how much change they thought society could cope with in one bite.
Individual judges and law professors have argued since at least the 1920s that selective incorporation was BS and that the whole BoR should be considered as limitations on state powers.
Some even served on the US Supreme Court, but never five at once...
Still, with so little remaining to incorporate, the Parker/Heller judges COULD finally dump the "selective incorporation" fraud once and for all and apply the 2nd (and 3rd/5th) to the states all in one go. It ain't likely but it is possible.
There's two issues that are going to need to be brought before the Supremes.
First is "is it an individual right?". Heller/Parker will be dealing with that, with any luck.
Second is "does it apply to the states"? See, right now three pieces of the Bill Of Rights have not yet been applied to the states via a doctrine cooked up in the early 20th century called "selective incorporation". One by one, pieces of the BoR have been "incorporated" against the states. The three pieces left:
a) The 3rd Amendment (nobody "quarters troops" in homes in peacetime anymore...).
b) The right to a grand jury indictment in major cases. States like California indict on judge's signatures. (Which is a problem because it's crippled the Grand Jury system in general.)
c) The 2nd Amendment.
The Parker/Heller case was brought in DC so as to AVOID the incorporation issue. DC isn't a state. So it's very possible we could get a ruling that has a pro-RKBA effect in DC but means nothing in California UNTIL we do another case fixing the incorporation issue - getting the Supremes to decide that the 2nd is a "fundamental due process right" that the states can't mess with via the 14th Amendment.
The 14th Amendment was *supposed* to apply the Bill Of Rights to the states - specifically including the 2nd, as the authors of the 14th in 1868 were trying to give newly freed slaves a measure of defense against the proto-KKK (and very specifically said so). But the Supreme Court in a series of ugly decisions between 1870 and 1900 gutted the entire 14th top to bottom. Only in the 20th century did the court start rebuilding it - but only "selectively", in pieces, apparently based on how much change they thought society could cope with in one bite.
Individual judges and law professors have argued since at least the 1920s that selective incorporation was BS and that the whole BoR should be considered as limitations on state powers.
Some even served on the US Supreme Court, but never five at once...
Still, with so little remaining to incorporate, the Parker/Heller judges COULD finally dump the "selective incorporation" fraud once and for all and apply the 2nd (and 3rd/5th) to the states all in one go. It ain't likely but it is possible.
Jim's post is accurate as written, but could be misleading, at a quick read, to someone not familiar with con law. It's massively important to keep clear that a pro-RKBA ruling in Heller would not "mean nothing" outside of DC, even if the Court doesn't open the question of incorporation.
To the contrary, victory in Heller means that all federal gun laws -- statutes passed by Congress -- become subject to Second Amendment scrutiny, Second Amendment legal challenges, all throughout the country, in the federal courts in CA or in any other state.
Nonincorporation just means that until 2A is incorporated, Americans can't challenge their own state's gun control statutes under the federal 2A.
Jim's point is that, since California's noxious gun laws generally duplicate (and go further than) federal laws, California's citizens may not be able to get much ultimate "relief on the ground" (expanded legal gun possession / carry rights) without incorporation, since they need both offending federal statutes and offending state statutes to be cleared away.
But to people in pro-gun states, Heller could make a difference very quickly, even without incorporation.
The point is important enough not to obscure, so I offer this explanation even though, as I said, Jim's post isn't incorrect.
Money could be the reason as you pointed out in your post "go here first" requesting for a donation, rather than information to the question asked by the OP.
Dough is a big item and who is able to have a good case that is going to win and not lose in the court system. It seems the right and wrong of it does not matter or if it is protected under a rule. But just who is going to make money and who lobbey's the most and pays the best. If it really had anything to do with right and wrong more states would be like AZ and everyone would carry.
That to me is pretty bad policy, and those who worked there way up to statehood had to be similar it seems. Now we are aiming for everyone to walk around with a firearm on their hip
Some can not have it in the middle of the road it either has to be left or right
Brady was bad for the country (shooting). One person has effected many lives of folks that are as innocent as Brady was, in a good way some feel and a bad way others say.
So we will continue to go down the road zig zaging across for years to come, hopefully.
One side or the other is not a good location.
Harley, the LII site sometimes interjects those pop-up screens when someone comes to the site via link. Just click "No, thanks" at the pop-up screen and you will be taken to the text of 10 U.S.C. 311, the federal statute defining the "militia," which is indeed relevant to the original poster's question, as Old Fuff's response explained.
Plainsman, you're absolutely correct and I appreciate the clarification.
Right now, in SOME states the worst things we have to contend with are Federal laws - in other words, the state laws are looser than Fed.
But I believe that's not the most common situation. Oh, it is if we're just counting states - but if we count "people affected", the hideous state laws in places like New York, New Jersey, California, Mass, etc. are BY FAR the bigger practical limitations to our rights. And the population density in those states is enormous.
Even in relatively decent states like Texas, it's STATE law that makes you get a CCW, STATE law that bans open carry and hence STATE law that can make you a criminal (albeit a minor one) if the wind catches your jacket and exposes your piece.
In contrast, in Vermont and Alaska anyone can carry openly or concealed, no permit required, and Federal law doesn't do any extra limits.
It's those Godawful state laws that will have to be dealt with in future cases, either by challenges in civil court or defenses in criminal court.
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I think the best type of post-Heller/Parker incorporation challenge would attack open carry bans in places that have at least halfway respectable CCW laws. The SOLE purpose of open carry bans under those circumstances is to shift popular opinion further towards the "guns are eeevil and must be shut away from sight" camp, which flies smack in the face of the 2nd.
Right now, in SOME states the worst things we have to contend with are Federal laws - in other words, the state laws are looser than Fed.
But I believe that's not the most common situation. Oh, it is if we're just counting states - but if we count "people affected", the hideous state laws in places like New York, New Jersey, California, Mass, etc. are BY FAR the bigger practical limitations to our rights. And the population density in those states is enormous.
Even in relatively decent states like Texas, it's STATE law that makes you get a CCW, STATE law that bans open carry and hence STATE law that can make you a criminal (albeit a minor one) if the wind catches your jacket and exposes your piece.
In contrast, in Vermont and Alaska anyone can carry openly or concealed, no permit required, and Federal law doesn't do any extra limits.
It's those Godawful state laws that will have to be dealt with in future cases, either by challenges in civil court or defenses in criminal court.
---
I think the best type of post-Heller/Parker incorporation challenge would attack open carry bans in places that have at least halfway respectable CCW laws. The SOLE purpose of open carry bans under those circumstances is to shift popular opinion further towards the "guns are eeevil and must be shut away from sight" camp, which flies smack in the face of the 2nd.
The only other American jurisdiction with gun ban laws comparable to the abysmalness of D.C.'s is ... Chicago, IL, and some of the surrounding towns. Even NYC isn't quite that bad.
So a Parker/Heller redo, but brought by a Chicago resident, would be one natural way to present the question of incorporation.
Failing that (maybe the plaintiffs would prefer not to mount a head-on challenge to the famous Quilici decision by the 7th Circuit? But it's a rather different 7th Cir. today...), I'd say the best bet would be a challenge to a "may issue" CCW law in a jurisdiction where issuance is nastily political and capricious ... like, say, certain counties in California!
Bring a suit that, in essence, seeks to convert a "capricious issue" state to a "shall issue" state.
The parallel to First Amendment free speech law -- where that sort of arbitrary, standardless permit-based regulatory regime wouldn't be countenanced for a minute -- might make for a good case. And the atmospherics would be compelling. Even a judge who doesn't care much for guns in general is likely to be morally offended by the prospect of elected sheriffs doling out carry permits to celebrities and fat cats with bodyguards, when a law-abiding working-class mother in a dangerous neighborhood can't get one. The whole scene is pretty obviously un-American.
Of course, if the suit were brought in California it'd have to come up via the Ninth Circuit ...
So a Parker/Heller redo, but brought by a Chicago resident, would be one natural way to present the question of incorporation.
Failing that (maybe the plaintiffs would prefer not to mount a head-on challenge to the famous Quilici decision by the 7th Circuit? But it's a rather different 7th Cir. today...), I'd say the best bet would be a challenge to a "may issue" CCW law in a jurisdiction where issuance is nastily political and capricious ... like, say, certain counties in California!
Bring a suit that, in essence, seeks to convert a "capricious issue" state to a "shall issue" state.
The parallel to First Amendment free speech law -- where that sort of arbitrary, standardless permit-based regulatory regime wouldn't be countenanced for a minute -- might make for a good case. And the atmospherics would be compelling. Even a judge who doesn't care much for guns in general is likely to be morally offended by the prospect of elected sheriffs doling out carry permits to celebrities and fat cats with bodyguards, when a law-abiding working-class mother in a dangerous neighborhood can't get one. The whole scene is pretty obviously un-American.
Of course, if the suit were brought in California it'd have to come up via the Ninth Circuit ...
If, by some miracle, Heller were to result in the NFA registry disappearing (Unlikely immediately, but sometime down the road a ways), Arizonan's would no longer be allowed to own Machine Guns, Suppressors, SBS, SBR, etc. It seems kinda funny, AZ being such a pro-gun state, but the statute, as written, would make all NFA items illegal if the registry went away.
13-3101. Definitions
(...cut out the non-applicable stuff)
7. "Prohibited weapon" means, but does not include fireworks imported, distributed or used in compliance with state laws or local ordinances, any propellant, propellant actuated devices or propellant actuated industrial tools that are manufactured, imported or distributed for their intended purposes or a device that is commercially manufactured primarily for the purpose of illumination, including any of the following:
(a) Explosive, incendiary or poison gas:
(i) Bomb.
(ii) Grenade.
(iii) Rocket having a propellant charge of more than four ounces.
(iv) Mine.
(b) Device that is designed, made or adapted to muffle the report of a firearm.
(c) Firearm that is capable of shooting more than one shot automatically, without manual reloading, by a single function of the trigger.
(d) Rifle with a barrel length of less than sixteen inches, or shotgun with a barrel length of less than eighteen inches, or any firearm that is made from a rifle or shotgun and that, as modified, has an overall length of less than twenty-six inches.
(e) Instrument, including a nunchaku, that consists of two or more sticks, clubs, bars or rods to be used as handles, connected by a rope, cord, wire or chain, in the design of a weapon used in connection with the practice of a system of self-defense.
(f) Breakable container that contains a flammable liquid with a flash point of one hundred fifty degrees Fahrenheit or less and that has a wick or similar device capable of being ignited.
(g) Chemical or combination of chemicals, compounds or materials, including dry ice, that is placed in a sealed or unsealed container for the purpose of generating a gas to cause a mechanical failure, rupture or bursting of the container.
(h) Combination of parts or materials that is designed and intended for use in making or converting a device into an item set forth in subdivision (a) or (f) of this paragraph.
B. The items set forth in subsection A, paragraph 7, subdivisions (a), (b), (c) and (d) of this section do not include any firearms or devices that are registered in the national firearms registry and transfer records of the United States treasury department or any firearm that has been classified as a curio or relic by the United States treasury department.
c2k
13-3101. Definitions
(...cut out the non-applicable stuff)
7. "Prohibited weapon" means, but does not include fireworks imported, distributed or used in compliance with state laws or local ordinances, any propellant, propellant actuated devices or propellant actuated industrial tools that are manufactured, imported or distributed for their intended purposes or a device that is commercially manufactured primarily for the purpose of illumination, including any of the following:
(a) Explosive, incendiary or poison gas:
(i) Bomb.
(ii) Grenade.
(iii) Rocket having a propellant charge of more than four ounces.
(iv) Mine.
(b) Device that is designed, made or adapted to muffle the report of a firearm.
(c) Firearm that is capable of shooting more than one shot automatically, without manual reloading, by a single function of the trigger.
(d) Rifle with a barrel length of less than sixteen inches, or shotgun with a barrel length of less than eighteen inches, or any firearm that is made from a rifle or shotgun and that, as modified, has an overall length of less than twenty-six inches.
(e) Instrument, including a nunchaku, that consists of two or more sticks, clubs, bars or rods to be used as handles, connected by a rope, cord, wire or chain, in the design of a weapon used in connection with the practice of a system of self-defense.
(f) Breakable container that contains a flammable liquid with a flash point of one hundred fifty degrees Fahrenheit or less and that has a wick or similar device capable of being ignited.
(g) Chemical or combination of chemicals, compounds or materials, including dry ice, that is placed in a sealed or unsealed container for the purpose of generating a gas to cause a mechanical failure, rupture or bursting of the container.
(h) Combination of parts or materials that is designed and intended for use in making or converting a device into an item set forth in subdivision (a) or (f) of this paragraph.
B. The items set forth in subsection A, paragraph 7, subdivisions (a), (b), (c) and (d) of this section do not include any firearms or devices that are registered in the national firearms registry and transfer records of the United States treasury department or any firearm that has been classified as a curio or relic by the United States treasury department.
c2k
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