CA - Gura Busy - Sues for Arbitrary Denial

[BluegrazzGuy]

Gura has filed another California suit challenging local law enforcement's arbitrary denial of concealed carry permits, the only way to go armed, whether concealed or not. The complaint is here (http://www.hoffmang.com/firearms/sykes/Sykes-v-McGinness-Complaint-2009-05-09.pdf).

I gave the complaint a quick read. The plaintiffs seem to have been picked with particular care and the facts fairly egregious. The first claim for relief is a denial of Second Amendment rights via 42 U.S.C sct. 1983. The second is a claim for violation of Equal Protection via sct 1983 for arbitrarily issuing or not issuing permits, the third for Due Process violations of one of the plaintiffs when his permit was revoked for no reason, and the fourth is for violation of right to travel.

Even before Heller, I have always thought there was a constitutional violation by those governmental authorities who arbitrarily decide to issue or not issue permits without objective criteria evenly applied. Heller strengthens this argument.

[d90king]

I hope it goes well but you never know out there. I do believe that it is a violation to your 2a rights and should be addressed.

It is interesting that they choose to put a different standard on who's life is more valuable than others. I have read that even some attorneys have had theirs revoked for no reason.

Judges okay, lawyers no hmm, LEO but not the everyday citizen hmm, politicians okay but not CEO's ... Somehow something seems fundamentally wrong with that... at birth we are given the rights to basic protection from harm from others, the state doesn't hand it out as a privilege.

Just my 2cents...

[Frank]

This is what I've been waiting for. It's a well written complaint with a nice assortment of plaintiffs. Since Heller I've thought that "may issue" CCW systems would be vulnerable once we had incorporation. While, as I've noted before, it's well settled law that Constitutionally protected rights can be subject to regulation, regulation that gives discretion to government officials has not been acceptable.

Well we have incorporation in the 9th Circuit now, so California's "may issue" CCW rules are a logical target. In addition, we have legislation now pending that would amend California's CCW law to remove the discretionary element. So this lawsuit might give the legislation a boost. Arguably it would be better for the State to install a "shall issue" scheme under it's own power than to spend a lot of time and money (which it doesn't have) only to wind up with "shall issue" forced on it by the courts.

This should be interesting.

[Rich-D]

The situation does look good for Californians!

Best of Luck!
Rich

[BluegrazzGuy]

I think a number of local governments are going to have to pay out some big attorney fees before they finally start realizing they cannot enforce laws which essentially disarm citizens. Eventually they'll figure it out but it's going to take a long time before the parameters of permissible regulation are defined.

[d90king]

parameters of permissible regulation are defined.


It seems simple enough, you may regulate but not infringe on the right to bear arms...

Maybe I am to much of a simpleton....

[Aguila Blanca]

This is what I've been waiting for. It's a well written complaint with a nice assortment of plaintiffs. Since Heller I've thought that "may issue" CCW systems would be vulnerable once we had incorporation. While, as I've noted before, it's well settled law that Constitutionally protected rights can be subject to regulation, regulation that gives discretion to government officials has not been acceptable.
As you are an attorney and I am not, I defer to your knowledge of what is "well settled law." However, speaking as a layman and wordsmith, I respectfully submit that if it is well settled law that the 2nd Amendment is subject to regulation (and I am aware of the language in Heller), then the law has settled well but wrongly.

I base that opinion purely on the language of the Bill of Rights itself. In addressing the right of the People to be safe from excessive intrusion into their lives, the 4th Amendment says we shall not be subject to "unreasonable" search and seizure. Clearly, if the standard is that we are protected against "unreasonable" actions, then "reasonable" actions are allowed under the 4th ... and it presumably falls to the legislatures and to the courts to draw the line where "reasonable" becomes "unreasonable." That might suggest an allowance for regulation.

However, the word "reasonable" or "unreasonable" does not appear in the 2nd Amendment. It does not say that the right of the People to keep and bear arms shall not be unreasonably infringed. It says that the right SHALL NOT be infringed. By definition, regulation is infringement. Therefore, despite Mr. Justice Scalia's majority opinion, in fact the 2nd Amendment is not, by a strict reading of the Constitution, subject to any regulation whatsoever.

But ... they didn't ask me.

[d90king]

To me reasonable regulation would mean, to regulate that criminals who have lost their right to own a firearm through past criminal actions, are not permitted to purchase them.

That is just about it before it becomes an infringement upon the common law abiding citizens rights.

[Frank]

...It [the 2nd Amendment] does not say that the right of the People to keep and bear arms shall not be unreasonably infringed. It says that the right SHALL NOT be infringed. By definition, regulation is infringement. Therefore, despite Mr. Justice Scalia's majority opinion, in fact the 2nd Amendment is not, by a strict reading of the Constitution, subject to any regulation whatsoever. Be that as it may, regulation is not going to go completely away. I have no doubt that some existing regulation, and some future regulation, of the RKBA will be sustained by courts under the strict scrutiny standard outlined by me elsewhere. What do you propose to do about that? Courts will continue, as they rule on new cases, to follow established doctrine and precedent. That's important, because were that not the case it would be completely impossible to predict how future questions would be handled. Without the doctrine of following precedent (stare decisis) the next court that looks at a 2nd Amendment case could decide that it's a collective right.

Consider the 1st Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."(emphasis added)

The word "abridge" meant, at the time the Constitution was written, to deprive or diminish. Notwithstanding this plain language, we have many laws abridging the freedom of speech and assembly. We have laws requiring permits for parades and public assemblies; we have laws requiring prior regulatory approval of material soliciting offers to buy securities; we have laws regulating playing load music in residential areas to the disturbance of others; and courts have consistently ruled that the time, place and manner of speech may be regulated.

And yes, I'm familiar with the saying, "What part of 'not be infringed' don't they understand." But it just doesn't seem to work that way in the real world.

I know that there are many who find this problematic, but absent a radical departure from over 200 years of court decisions, it's not going to change. Alternatively, Congress and the state legislatures could change things radically -- by, for example, simply repealing existing laws regulating the RKBA (and free speech). But do you honestly believe that we have the political traction to make that happen? (A few states have indeed eased some regulation of the RKBA, but other states continue to attempt to impose further restrictions.)

[Rich-D]

Personally, I would like to see Supreme Court Justice's appointed who have the mindset of Aguila Blanca. However, the reality of our legal system is outlined by Frank. Over 200 years of precedent and doctrine have sadly eroded the original intent of the 2nd Amendment. And that intent was to protect and preserve the natural right of self protection by means of arms.

Rich