For Wildalaska:
Quoting:
>> And 1983 was crafted for exactly that reason.,..to stop civil rights violations under color of state law...<<
Sure, it was one of a whole family of laws crafted for that purpose, the "king" of which was the 14th Amendment, all passed between 1866 and I think the last was in 1869 or 70?
My point is that the actions of Cruikshank and company *clearly* fell into that category: "civil rights violations under color of state law" as you put it.
OH YA, there WERE parts of that whole "attempted system" to fix racism that were aimed at individuals: the Freedman's Bureau act and especially the specifically anti-KKK act (I forget exactly what it was called) were NOT entirely aimed at state agents, but private citizens at least in part.
>> No, cited as it may be, Cruikshank is no longer "good law". <<
Heh. What was your first clue?
Seriously, Judge Reinhardt in the recent 12/02 3-judge 9th panel decision in Silveira disparaged Cruikshank because clearly, the "surviving bit" about the 2A won't last two seconds before the USSC. But it IS still being cited, by Calif AG Lockyer for starters.
>> Further, are you contending that it is good policy, on a constitutional level, to allow the Feds to prosecute crimes by ordinary citizens...ie do you agree with federal prosecutions of civil rights violations directed against individual actions? <<
Hell yes, if the states won't do it!
Both the Feds and states need to be involved in the field of protecting individual civil rights. The entire history of the US post-civil-war just SCREAMS the need!
Hell, even *before* that...God, in 1858/59, I can't recall which, South Carolina passed a law banning any preacher from praising abolition (anti-slavery) from any pulpit, regardless of his race or the racec of his congregation...punishable by death. Gee, so much for freedom of speech OR freedom of religion.
You think the Feds should be barred from doing anything about that?
>> On the contrary, I think that at least in dicta, it has so been recognized. It just has not been applied to the states via selective incorporation. <<
When I wrote "They've yet to view the 2nd as a "fundamental right"", I meant it in the context of incorporation.
>> Are you complaining that the Courts have intepreted the constitution at different time periods based on prevailing socio-political mores? Remember the same founding fathers that created the second amendment were slave owners. Isnt it a good feature of our system that legal "errors" can be corrected based on evolviong standards? Hasnt British jurisprudence also so evolved? <<
OH no. It's much worse than that.
The USSC destroyed the 14th Amendment pretty much entirely. Jesus, they burned it to the ground and scattered the ashes between 1872 and 1900. They did it out of spite and racism...there's just no other way to begin to interpret freakshows like Cruikshank, Williams and Plessy
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And THEN when they built it back up again, they used a "badly skewed set of blueprints". They left the P&I clause for dead, they jerry-rigged "selective incorporation" onto the Due Process clause by supporting just those elements of the BoR they were prepared to support at a given time, and the Equal Protection clause was turned into a vehicle for reverse discrimination instead of true equality.
>> Now let me add here that I am not particularly familair with your particular California case so cannot comment as to why your judge ruled the way he did. <<
I'll go into details on that below. It'll be best if I answer the rest of your paragraph first...
>> On the other hand I must disagree that rational basis and strict scrutiny are "baseless"...they are not legal concepts derived from the law, but analytical tests to ascertain whether fundamental rights are violated. <<
But in the real world, whether discrimination is judged on one or the other is based on the race of the person discriminated against. We'll get into that in my last Fed case.
They were and remain an invention of the courts, and I've personally seen them promote racism.
>> In a practical sense, assuming arguendo that the SC rules the 2a is an individual right AND is applicable to the states, what test do you propose to determine whehter a particular "gun control" (a generic phrase) law is violative of that right? <<
Well under current doctrine, "rational basis" is a joke because first, the presumption of rationality is given to the law in question. As long as the gov't lawyers defending the law and/or discriminatory process can "state a claim that sounds halfway good", the law stands unless it can be PROVEN "irrational".
Well you can't prove a negative. You can tell me that last week, a pink alien spacecraft from Saturn landed in a Wyoming cornfield and three bug-eyed beasties got out and did the "Macarena" to the an old Elvis tune, and I might say "horsecrap"!
At which point you can say "Oh yea? PROVE IT!" and "win" the argument
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If a gun control law gets subjected to "strict scrutiny", it'll be trashed if either of two conditions happen:
1) It can't be shown likely that it'll do a damn bit of good, or:
2) It might help things, but less-restrictive measures would also help.
I believe the *VAST* majority of all current gun control would fail a "strict scrutiny" evaluation. I can live with any that don't fail - believe it or not, I'm not a "Second amendment purist".
>> BTW, I am still curious abourt the RKBA or lack thereof in State constitutions and its relationship to a federal right. <<
In most of the original 13 states, the state RKBA clause came *first* and influenced the later 2nd Amendment - those state Constitutions were there back when we were operating under the old Articles of Confederacy. The states said they wouldn't ratify the core Constitution under the new system unless work started on a BoR. When new states formed, they copied the style and structure of both the new Constitution/BoR *and* the state Constitutions from the original 13 - after all, the people in the younger states came from the older.
So it's possible to read too much into the existence of state RKBA clauses, and say that their existence should supplant or eliminate the need to have the Fed 2nd Amendment apply to the states. State RKBA clauses are basically a leftover from the era when the central-gov't didn't yet have a BoR.
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About my case:
Basically, I proved that my sheriff had discriminated in CCW issuance in two "layers":
1) First, he would only issue to the upper and middle income towns in the county, which were either unincorporated or incorporated but lacked their own PDs and hired the sheriff's office for patrol services. The lower and middle income towns had their own independent Police Chiefs and said Chiefs asked the sheriff to discriminate against their own town's citizens in permit issuance. This was codified in a "Contra Costa County Police Chief's Association Model CCW Protocol" document, which I have.
The Chiefs of these towns either didn't issue, or issued only to government employees (contrary to a state appellate court decision calling exactly that policy "abusive").
The towns thus blocked were consistently "blacker" than the rest of the county. As a resident of one of the "blacker" towns, I may have been white, but I was still being screwed by this process.
In case you think I'm making all this up:
http://www.ninehundred.com/~equalccw/cccc2.pdf
2) Even if you were rich enough to live in one of the areas the sheriff had declared to be "in his jurisdiction", your permit application would be judged based on membership in his personal political club and/or campaign contributions.
I had..."indications" of #2, but not hard enough proof. I had absolute proof of #1, the racial/economic/geographic based barrier...but I wasn't allowed to raise it because I was too pale.
That's OK. I'm gonna try again. 'Cept it won't be me as plaintiff, it'll be a black and/or Latino
. The courts wanna play games, fine, let's muthaf***in' PLAY.
For more on the exact gameplan for my next major case devised *after* that race-based crash'n'burn in Fed court a couple years back, see also this document, particularly the 2nd chapter on equal protection:
http://www.ninehundred.com/~equalccw/practicalrace.html
It's been reviewed by six lawyers to date - none can find any flaws other than "what's the legislature likely to do when we win".
I'd be particularly interested in your take on the Arlington Heights and Hunter precidents as a method of getting "strict scrutiny" applied to the California discretionary CCW system.
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