quote:Two new federal court decisions highlight a harsh new reality: California has effectively repealed the Second Amendment inside its borders.
In the first case, decided yesterday, a district judge ruled against the National Rifle Association's state affiliate in a challenge to onerous new California rules targeting popular semi-automatic rifles. That 2016 law, signed by Gov. Jerry Brown (D), is called the Assault Weapons Control Act.
"Even an outright ban on certain types of semiautomatic weapons does not substantially burden the Second Amendment right," wrote Judge Josephine Staton, a Barack Obama appointee in Santa Ana, California. Staton suggested that if semiautomatic rifles like the AR-15 were outlawed, California gun owners "would be left with myriad options for self-defense—including the handgun, the 'quintessential' self-defense weapon per Heller." (Heller, is, of course, a reference to the Supreme Court's D.C. v. Heller case, which dealt with handguns.)
The second unsuccessful Second Amendment case, also brought by the NRA's state affiliate, sought to protect Californians' rights to carry firearms for self-defense. A federal judge in Los Angeles tossed it on Monday, saying the California legislature "reasonably saw a link between restrictions" on carrying firearms and public safety.
In theory, after the Supreme Court's Heller decision in 2008, the Second Amendment was supposed to mean something—it was supposed to protect a core fundamental right as important as the freedom to speak or to worship. Just as the First Amendment was the uniform law of the land across the nation, the theory went, the Second Amendment would be as well.
But, alas, that was not political reality. California judges, especially in cities like San Francisco and Los Angeles, have creatively interpreted the Heller decision into a constitutional near-nullity. The U.S. Court of Appeals for the Ninth Circuit has upheld those decisions. And the U.S. Supreme Court, has abdicated its responsibility by letting lower courts get away with it.
"If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene," Justice Clarence Thomas wrote in a dissent from his colleagues' decision not to hear the Silvester v. Harris case after the 9th Circuit upheld another California anti-gun measure. "But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court… The right to keep and bear arms is apparently this Court's constitutional orphan." (Justice Neil Gorsuch joined Thomas in a separate dissent last year that made a similar point.)
In the lawsuit decided yesterday, Rupp v. Becerra, the California Rifle and Pistol Association asked the court to rule that the 2016 Assault Weapons Control Act was unconstitutional under the Second Amendment and the Constitution's due process and takings clauses. The California law makes it a crime to manufacture, sell, import or transfer hundreds of popular semi-automatic firearms with a pistol grip or adjustable telescoping stock—and the ban on transfers includes gifts between parents, grandparents, and children.
California gun owners who legally owned such a rifle before December 31, 2016 have only a few choices: register it as an "assault rifle" (which imposes strict new requirements), modify it, sell it, or store it out of state. Failing to register by July 2018 is a crime. (Any bets on how many firearms actually will be?)
Judge Staton's opinion upholding the 2016 law underscores how widespread—and overt—the judicial resistance to Heller has become. Some excerpts from her opinion: "The legislature is permitted to reform its gun control regime incrementally...It is beyond question that promoting public safety and reducing incidents of gun violence are legitimate government interests... restrictions on semi-automatic weapons bear a rational relationship to the objective of public safety..." Does anyone think that a California judge would be so deferential to the legislature when evaluating a law that, say, restricts the availability of abortions?
This judicial rebellion is not limited to California and the 9th Circuit. It's present in other circuits, including the 2nd Circuit and the 4th Circuit, which has coughed up conclusions like "assault weapons and large-capacity magazines are not protected by the Second Amendment," despite both being in common use. Then there's the 7th Circuit, which opined: "If a ban on semiautomatic guns and large-capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that's a substantial benefit." Note where this logic leads us: If ban on certain books makes the public "feel safer," that surely counts as a "substantial benefit" allowing the law to be upheld as constitutional.
In the California carry case, decided Monday by Judge John Kronstadt, another Obama appointee, the California Rifle and Pistol Association argued that the state could not completely prohibit residents from carrying a firearm for self-defense. California has banned the open carry of firearms, and many metropolitan areas will not issue concealed carry permits—a combination that means millions of law-abiding residents cannot legally carry a firearm. (The case is called Flanagan vs. Becerra.)
Kronstadt granted requests from the state of California and the Los Angeles County Sheriff to dismiss the lawsuit. "The burden that [the state laws] impose, if any, on a right protected by the Second Amendment, is not severe...California's open-carry laws do not infringe upon the 'core' Second Amendment right of self-defense within the home," Kronstadt concluded.
The California Rifle and Pistol Association can, of course, appeal both cases. But everyone paying even the slightest bit of attention already knows what the outcome will be before the largely anti-gun 9th Circuit. And the Supreme Court will likely ignore the warnings from Justice Thomas and Justice Gorsuch and refuse to take the cases.
This is how the courts, quietly, one case at a time, without a vote, are making sure the Second Amendment simply will not apply within the state of California.
Onward and upward, airforce
Posts: 17957 | From: Tulsa | Registered: Jan 2002
quote:The U.S. Supreme Court on Monday sent a clear message to millions of gun owners in California: You're living in a Second Amendment-free zone.
In an order on Monday, without explanation or comment, the Court rejected a civil rights lawsuit brought by the Calguns Foundation and the Second Amendment Foundation. Those groups had hoped the justices would rule that the Second Amendment continues to apply even in the progressive enclaves of the left coast—and that law-abiding California residents possess the right to buy and sell firearms.
Instead, the Supreme Court declined to hear the case, a decision that underscores its willingness to let California legislators and judges evade the Second Amendment within the borders of the state.
"There are no significant Second Amendment obstacles to local and state gun control at this point," said Don Kilmer, an attorney in San Jose, California, who is representing the gun rights groups. Also representing them is Alan Gura, who has taken two Second Amendment cases to the Supreme Court before.
Their lawsuit challenges a decision by Alameda, a California county that includes Oakland and other east bay cities, to enact a zoning law so onerous it effectively bans gun stores. The U.S. Court of Appeals for the 9th Circuit sided with Alameda in 2017, saying that "no historical authority suggests that the Second Amendment protects an individual's right to sell a firearm."
At least Monday's decision serves one useful purpose: It exposes the federal judiciary's willingness to elevate some constitutional rights over others.
If a city enacted zoning laws that effectively outlawed abortion clinics, and a federal appeals court had permitted it, the Supreme Court would have stepped in a heartbeat later. Under precedents going back to Maher v. Roe (1977), any law representing "direct state interference" with abortion is evaluated using strict scrutiny, the most exacting standard of legal review. Few such laws survive. (The 9th Circuit did not apply strict scrutiny to Alameda's law.)
In today's California, even adult movie theaters enjoy greater legal protections than gun stores. In a 1986 decision, the Supreme Court said the First Amendment allows municipalities to restrict such theaters (apparently they were a thing before the Internet) only if zoning laws provide a "reasonable opportunity to open and operate an adult theater within the city."
The current lawsuit arose when three entrepreneurs, John Teixeira, Steve Nobriga, and Gary Gamaza, formed a partnership called Valley Guns and Ammo and started to look for potential locations in Alameda County. They planned to open a specialty shop that, in addition to selling firearms and ammunition, would have been the only store in the area to offer firearm safety training and certification, gunsmithing and repairs, and consignment and appraisal services.
Finding a location was difficult. An Alameda County zoning ordinance singles out gun stores by imposing extraordinarily strict rules. The location must be 500 feet away from any residentially zoned area, from any elementary, middle, or high school, from any preschool or day care center, from any other firearm retailer, and from any liquor stores, bars, or restaurants where liquor is served.
Alameda's true motive, of course, was to outlaw gun stores. But the three men managed to find a location that complied—it was over 500 feet from the store to the front door of the nearest home—and Alameda's zoning board approved the application. After complaints from anti-gun activists, however, the county changed its policy to require a distance of 500 feet from the store to the nearest area that was zoned for residential use. That made the distance from the store to the nearest home 446 feet, which the county said was not far enough.
The Calguns Foundation, the Second Amendment Foundation, and the California Association of Federal Firearms Licensees sued on behalf of the three entrepreneurs, but the outcome before the 9th Circuit was predetermined. This is one circuit that has never seen a Second Amendment violation and, unless President Donald Trump fills the current vacancies with reasonable picks, likely never will.
In theory, after the Supreme Court's Heller decision in 2008, the Second Amendment right to self-defense joined the pantheon of constitutional rights including the right to worship, the right to be free from unreasonable searches, and the right to speak freely. After the court's followup McDonald decision in 2010, it was supposed to be another fundamental right for all Americans to enjoy.
Alas, the Bill of Rights is not self-enforcing; our judiciary is entrusted with upholding and defending it. But the unfortunate reality today is that many federal judges, including a majority of the 9th Circuit, have creatively defined away Americans' right to self defense. And a majority of the justices on the Supreme Court have shown themselves, repeatedly, to be unwilling to do anything about it.
"If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene," Justice Clarence Thomas wrote in a dissent from his colleagues' decision not to intervene after the 9th Circuit upheld another California anti-gun measure in February. "But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court… The right to keep and bear arms is apparently this Court's constitutional orphan." (Justice Neil Gorsuch joined Thomas in a separate dissent last year that made a similar point.)
Kilmer, the San Jose attorney representing the gun rights groups against Alameda, says: "The problem with the 9th Circuit's activism, and the refusal of the Supreme Court to cabin in their abuses, is that the California legislature and local municipalities will feel free to do whatever they want."
Exactly so: the Second Amendment has been effectively repealed inside California. I suspect that California's millions of gun owners, who are subject to intrusive new registration requirements starting in July, are beginning to wonder: If federal judges routinely ignore the law, why can't I?
Onward and upward, airforce
Posts: 17957 | From: Tulsa | Registered: Jan 2002
My alma mater, the commonwealth of Virginia, is turning bluer every year. The girth of yankee and left coast liberals swarming to the bureaucratic waste dump that is Northern Virginia.
Anywhere south of the beltway considers those parts effectively "not Virginia". Virginia is everything but the DC 'burbs. And yet this onslaught of non-Virginians swelling the ballot boxes means that it may not be long before Virginia is making these same mistakes.
Luckily for us, the population differential between the liberals in the cities and the guntoting good ol' boys everywhere else are not nearly as bad as California. But all it takes is a couple more General Assembly seats changing colors and we're in a dark place.
I'll be there, lawbooks in hand, waiting for a plaintiff to walk into my office saying "this is bullshit". I've represented individuals against government before (using my Third Year Practice Certificate), it's an interesting dynamic. But if you're an attorney, your bills are already paid, and you need a hobby, some pro bono hours fighting the Man over gun control seems like a good deal.
-------------------- Semper Vigilantes, Numquam Exspectantes
Always Watching, Never Waiting Posts: 635 | From: Somewhere in these blue ridged mountains | Registered: Apr 2009