The AG can form an opinion, which can influence or give cover to agencies who use that opinion in determining GC. And if an AG said self defense consistant with 2nd A. purposes was GC, a CA court, although not bound by an AG opinion, will give it the respect and weight entitled to the state's attorney general.
Next step post-Heller: the 14A Incorporation issue. Details :)
- Thread starter Jim March
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The AG can form an opinion, which can influence or give cover to agencies who use that opinion in determining GC. And if an AG said self defense consistant with 2nd A. purposes was GC, a CA court, although not bound by an AG opinion, will give it the respect and weight entitled to the state's attorney general.
The OP about this was how shall issue could come about in CA. Since the law gives the sheriffs almost complete discretion in this matter, anything the AG says about good cause would have zero effect in making it shall issue.
It might give the sheriffs some political cover, but it would not create shall issue overnight simply because the law in question says "sheriff of a county ... may issue to that person a license to carry a pistol...". Good cause is not adequate for getting a license, although good cause is one of the requirements.
Jim March
Member
Per California law, that's true. Would that law hold up post-Heller? Doubtful.
Some additional thoughts:
* I'm going to go back and revise the main document later today. Something has been bothering me regarding Slaughter-house: "is it still valid case law"? If the Heller court strongly criticized Cruikshank, and Cruikshank borrows logic from Slaughter-house, then by implication the Heller court is casting doubt on Slaughter-house. I want to make that explicit.
* I also want to do a first draft of a letter that should go out from an attorney to every police chief and sheriff in the state, warning them that CCW discrimination is now very legally suspect, and arresting an out-of-stater with another state's CCW even moreso due to the intersection of Heller (civil right to defense) with Saenz (no fair discriminating against out-of-stater). We *might* see memos go out to officers in some jurisdictions telling them what to do in order to avoid 42USC1983 suits.
Bartholomew Roberts
Member
One big difference between Slaughterhouse and Cruikshank is that Slaughterhouse dealt with unenumerated rights and Cruikshank dealt with the Bill of Rights. I think that is an important distinction that would be relevant in a discussion of incorporation of the Second Amendment.
It will hold up until a relevant court says otherwise, and typically a few weeks or months after that while they sort things out.
I think the chance of any police agency in CA unilaterally deciding to honor out of state CC permits is about as good as them abding by the 2A - pretty close to nil.
Jim March
Member
Wanna bet?
Look, where departments like SFPD are concerned, yeah, snowball's chance in hell. But do you have any idea how many small departments are out there that just can't afford to defend against a credible 42USC1983 threat?
If you're a chief in some podunk town with a total of five cops, you included, are you likely to take that letter, have lunch with some attorney buddy, ask him if this makes any kind of sense and then they say "ooops, yeah it does!"...what are you going to do? Hang tough for gun-grabbin'?
We very well COULD get a situation where out-of-state CCW is accepted in a lot of the "boonie areas".
We also get a document that out-of-state CCWers could download and carry. Will it get them out of an arrest if the cop is so inclined? No. BUT it damned well might make a DA blanch. Remember, the threat is that the cops and prosecutors could be personally sued under 42USC1983: false arrest, false imprisonment, deprivation of rights under color of authority, this is HEAVY POOP, you know? In theory, an aggressive Federal attorney could arrest them for this stuff, esp. after we win a civil suit to this effect in Fed court somewhere.
That said, I think the MOST clear-cut situation is where states discriminate against an out-of-stater due to their home state's lack of reciprocity, even when they have a permit from a state the discriminating state honors.
So you think the answer is to bludgeon the people who already mostly support us anyway? You do understand that if the police agencies refuse to enforce the law, the state of CA may well step in and step on them.
I don't recall any US attorney going after civil rights violations except as a publicity stunt in recent years. If they wanted to do so there are a lot of egregious cases involving the Chicago PD that would be very easy to make. King Daley's handling of the police torture cases while he was state's attorney would have been a simple one to make.
As clear as mud maybe.
glockman19
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YES
And there lies the problem. Any Sheriff can issue based on his/her discression of your "Good Cause" ths varies from LEO to LEO in a "May Issue" world. Based on Heller, "Self Defense" should be "Good Cause" enough.
If the States lead procecutor the AG, hsnd down an opinion then most LEO & judges will Follow his legal opinion.
Jim March
Member
BB62: yes. I didn't have time to tweak it yet, tomorrow though.
Quoting ilbob:
Horsecrap.
I don't know how else to put it.
We had one sheriff down here who improved the CCW process in his county, but he still left discrimination in the process while sucking up the NRA to the point where he appeared in an NRA infomercial some years back. Well that was a mistake...the idiot is now in Federal custody on corruption charges which are backed with scads of evidence.
Listen carefully.
The discretionary nature of CCW is so obviously unconstitutional that you can't possibly pass off support of it as "he means well" or whatever. It's a fundamentally corrupt process. Every person who supports it is corrupt - both in the moral and financial sense.
The only sane response to this garbage, now that we hold the upper hand in court, is a basic threat: honor our civil rights and our constitution or we'll bankrupt you *personally*.
The tiny number of decent top cops who'll get this letter will cackle with glee at how it'll be taken in San Francisco, Los Angeles or the like.
Any that are insulted aren't fit for their job anyways so screw 'em.
Quoting ilbob:
Horsecrap.
I don't know how else to put it.
We had one sheriff down here who improved the CCW process in his county, but he still left discrimination in the process while sucking up the NRA to the point where he appeared in an NRA infomercial some years back. Well that was a mistake...the idiot is now in Federal custody on corruption charges which are backed with scads of evidence.
Listen carefully.
The discretionary nature of CCW is so obviously unconstitutional that you can't possibly pass off support of it as "he means well" or whatever. It's a fundamentally corrupt process. Every person who supports it is corrupt - both in the moral and financial sense.
The only sane response to this garbage, now that we hold the upper hand in court, is a basic threat: honor our civil rights and our constitution or we'll bankrupt you *personally*.
The tiny number of decent top cops who'll get this letter will cackle with glee at how it'll be taken in San Francisco, Los Angeles or the like.
Any that are insulted aren't fit for their job anyways so screw 'em.
Ivy Mike
Member
Jim, forgive a stupid question but couldn't congress legislate full incorporation of the Bill of Rights under Section 5 of the 14th amendment?
Sounds like appropriate legislation to me.
Sounds like appropriate legislation to me.
Jim March
Member
Under the precedents in Slaughter-house, Cruikshank and the other anti-incorporation cases, no, Congress can't do squat UNLESS it affects interstate travel.
The whole point of Slaughter-house and it's descendant cases is that the Federal authorities cannot control state-level violations of civil rights in general. And where the 2nd Amendment is concerned, this is still taken seriously by some Federal circuit court judges, including the 9th in the Fresno Rifle (1992), Hickman (1996) and Nordyke (2003) cases. Silveira (2002) disagreed with this trend and had to come up with a whole new plan for gun-grabbing...which is now totally shot down in flames in Heller.
The BIG question now is, will Slaughter-house, Cruikshank and the like get overturned? I think yes: Cruikshank is the real lynch-pin and it's a racist mess and a half as the Heller court noted.
That said, some issues are under Federal jurisdiction now. Under the 1986 Firearm Owners Protection Act (FOPA) if you're traveling from, say, New Hampshire to Pennsylvania by way of New Jersey, New Jersey can't screw with you. Congress has the right to control interstate travel. That's also why I think a lot of the CCW reciprocity issues fall under the cross-state-border rules as defined in cases like Saenz.
In other words, I think it's clear that a state cannot violate the civil rights of visitors from other states, in ways that discriminate against them or punish them based on what state they come from. That will get stomped on the instant somebody challenges it correctly.
The open question is, can states (such as California, Hawaii, New Jersey, etc.) abuse the 2nd Amendment rights of their own citizens? That will require a challenge to Cruikshank and Slaughter-house. I think such a challenge will win and the Heller court strongly suggests the same thing.
Jim March
Member
sailortoo
Member
I am logged in (more than once), but cannot download your "draft" - keeps telling me that I am not logged on, when I am. Am I doing something wrong?
sailortoo
sailortoo
Jim March
Member
Sounds like the board is screwing up again. It happens. May be a corrupted cookie - blow that out, log in fresh, see if that helps.
Worst case pick up the same file at:
http://www.thefiringline.com/forums/showthread.php?t=301054
Worst case pick up the same file at:
http://www.thefiringline.com/forums/showthread.php?t=301054
insidious_calm
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Jim March,
Bravo Sir! BRAVO!!! I could not agree more. The fact of the matter is that those who are really "mostly on our side" won't be taking enforcement action over questionable stuff anyway(like simple open carry in the other thread). Those who do are doing so because they are not on our side to begin with and should suffer the consequences of that decision. Let the word travel through the ranks. A few 18 USC 246 convictions should do just fine.
I.C.
__________________
Bravo Sir! BRAVO!!! I could not agree more. The fact of the matter is that those who are really "mostly on our side" won't be taking enforcement action over questionable stuff anyway(like simple open carry in the other thread). Those who do are doing so because they are not on our side to begin with and should suffer the consequences of that decision. Let the word travel through the ranks. A few 18 USC 246 convictions should do just fine.
I.C.
Jim March
Member
You should be able to get standing by taking a course to qualify for the CA CCW license and submitting the paperwork to your local LE (sheriff/police department as appropriate). You'll either be approved (doubtful) or rejected (probable). In any case you will either have a CCW license in CA or standing to bring a lawsuit.
IANAL
IANAL
Jim March
Member
Wait, we're talking about "standing" for two different cases.
To sue over California's discrimination against out-of-state visitors, we'd need CCW holders in other states. That would include me in AZ, Lonnie Wilson in WA state and scads of others. (Coming up with plaintiffs would be easy.)
To sue over how California discriminates against it's own residents on CCW, we need people in-state to apply in the normal fashion. A twist is that by law, it's clear that the max "up front" application fee is $20. If an agency wants more than that up front (and a LOT do, some into the hundreds of bucks) then...hmmm...there's a couple of ways to handle that.
One option: put together an application, include a letter stating that you're aware of the legal limit of $20 non-refundable for them to review the app, stick it all in an envelope and mail it in (certified). The moment you get either a denial or a demand for more money, you have standing and can sue.
Another choice: walk in with a friend, state at the front desk that you're applying for CCW, present your app and $20, if they deny you you have a witness. Note that they'll likely want to *verbally* deny you with no paper trail. Best bet is if the witness is (unknown to them) a lawyer or maybe a notary.
Riverdog: the application process is, apply, get approved, THEN do whatever training the local agency wants you to do. Some want training done before you can apply, as an additional economic barrier to application. Personally, if faced with this, I'd do the training, knowing that in the post-Heller world my odds of actually scoring the CCW permit are very, very high.
WARNING: California is a "two party recording" state. To record the conversation, you have to have permission of everyone present. The "wear a wire" gag is a really bad idea. Most states ("one party recording" states) you can do that...AZ for one. Not Cali.
To sue over California's discrimination against out-of-state visitors, we'd need CCW holders in other states. That would include me in AZ, Lonnie Wilson in WA state and scads of others. (Coming up with plaintiffs would be easy.)
To sue over how California discriminates against it's own residents on CCW, we need people in-state to apply in the normal fashion. A twist is that by law, it's clear that the max "up front" application fee is $20. If an agency wants more than that up front (and a LOT do, some into the hundreds of bucks) then...hmmm...there's a couple of ways to handle that.
One option: put together an application, include a letter stating that you're aware of the legal limit of $20 non-refundable for them to review the app, stick it all in an envelope and mail it in (certified). The moment you get either a denial or a demand for more money, you have standing and can sue.
Another choice: walk in with a friend, state at the front desk that you're applying for CCW, present your app and $20, if they deny you you have a witness. Note that they'll likely want to *verbally* deny you with no paper trail. Best bet is if the witness is (unknown to them) a lawyer or maybe a notary.
Riverdog: the application process is, apply, get approved, THEN do whatever training the local agency wants you to do. Some want training done before you can apply, as an additional economic barrier to application. Personally, if faced with this, I'd do the training, knowing that in the post-Heller world my odds of actually scoring the CCW permit are very, very high.
WARNING: California is a "two party recording" state. To record the conversation, you have to have permission of everyone present. The "wear a wire" gag is a really bad idea. Most states ("one party recording" states) you can do that...AZ for one. Not Cali.
Jim March
Member
Well...there has to be training before actual CCW issuance, the discretionary part is "when": before or after they approve you?
Some agencies want you to do a $150+ "gamble" on whether or not they're going to issue. In the pre-Heller world that gamble wasn't worth it. Post-Heller? Different story!
As long as the fees are basically legal of course. Somebody mentioned a published $750 up-front requirement to apply in Santa Clara County, which is just illegal as hell. In that case, I'd just send 'em $20 and the application, take whatever they write back into court.
Some agencies want you to do a $150+ "gamble" on whether or not they're going to issue. In the pre-Heller world that gamble wasn't worth it. Post-Heller? Different story!
As long as the fees are basically legal of course. Somebody mentioned a published $750 up-front requirement to apply in Santa Clara County, which is just illegal as hell. In that case, I'd just send 'em $20 and the application, take whatever they write back into court.
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