Skip to comments.Fresno federal judge: state's gun wait is unconstitutional for some
Posted on 08/25/2014 6:02:51 PM PDT by markomalley
A federal judge in Fresno on Monday ruled the state's 10-day waiting period for buying firearms is unconstitutional for those who've previously purchased weapons and cleared background checks.
U.S. District Court Judge Anthony W. Ishii issued the ruling after a March bench trial, as well as deposition testimony and numerous briefings that concluded at the end of June. Last December, he had denied a request by state Attorney General Kamala Harris to throw out the lawsuit. Harris, along with the California Department of Justice, were defendants in the suit.
"As an individual plaintiff I was ecstatic," said Madera County resident Brandon Combs. "It was years and an awful lot of work."
But as executive director of The Calguns Foundation, Combs said the decision is a step in what he sees as a restoration of gun rights that are part of the Constitution. Next up: almost certainly, another federal lawsuit, this one targeting the state's limit on handgun purchases to one every 30 days.
"Under state law, you can only buy one handgun a month," Combs said. "We think that is simply unconstitutional."
(Excerpt) Read more at fresnobee.com ...
If one handgun a month is upheld then I would liken that to as stupid as one church service a month, one newspaper or article published a month, or the expression of opinions limited to one a month.
The left just can’t get away with treating the 2nd Amendment differently than the others.
While captain zero has badly damaged our nation, I’m very glad he has caused the populace to be much more armed than anytime before.
All we need is 3%.
It's time for another run at the so-called "assault weapons" laws.
Those arms which are explicitly prohibited by name are operationally indistinguishable from others which are allowed. How can that possibly be Constitutional?
Those arms which are prohibited because they have a conspicuous pistol grip are indistinguishable from perfectly legal "bullet-button" equipped rifles except for the time required to reload them. Does the Second Amendment contain some implied minimum reloading time for the arms which are protected?
The spread of the gun control infection depended upon the fictitious and now obsolete myth of the "collective right" to keep and bear arms. I just wish things could speed up a little. I can't wait forever.
I will just encourage you by saying that the jurisprudence flowing from the Heller and McDonald cases was always going to take time to get going. For a while I wondered if they were going to be ignored and that SCOTUS would simply not take up any new 2nd Amendment cases.
It appears that in the years immediately following the above cases, courts were reluctant to apply the cases to any set of facts less drastic than the draconian laws challenged in those cases.
But there appears to be a paradigm shift in the circuit courts which I honestly didn't anticipate. They are really surprising me with some very good decisions (with some exceptions).
And jurisprudence (in one direction or the other) tends to pick up steam and the circuit judges pay close attention to the momentum across the country.
My instincts tell me that even judges who once laughed 2nd Amendment challenges out of court are now regularly taking a hard look at them. After all, they don't want the SCOTUS to create even more trouble for them by adding to case law regarding the whole aspect of “bearing arms”.
When I first saw Illinois being forced to respect the right to bear arms I was nervous as to what would happen should SCOTUS take it up on review. But it seems to me that the state of Illinois didn't want to chance that case becoming a part of SCOTUS jurisprudence by taking it up for review.
In the time being we are getting rulings that we could never have dreamed of before 2008. And the more that come down the pike the more precedent we have to deal with.
I remember vividly how we on FR in the early 2000s were so proud of a federal district judge in west Texas who found (by honestly opening his eyes) an individual right to keep and bear arms (IIRC it was the Emerson case). It was such a minority position in the federal courts that it was almost uniformly laughed at by the judicial community.
There is no doubt in my mind that both the four on the right (I'll include Roberts since he has been good on RKBA issues- mostly) and the four on the left don't want to risk taking these cases only to speculate on which side of the bed Kennedy wakes up on to decide the outcome. That's just my educated opinion on what's going on.
But the recent progeny of cases suggests that circuit courts are trying to prevent a slap down from a 5-4 SCOTUS for fear that Kennedy will not be moved by their positions.
Lastly, you have to keep in mind that there was a large volume of case law (in the lower courts) where 2nd Amendment challenges to laws like the AWB, etc. were uniformly dismissed without much of a whimper.
So the district and circuit courts kind of hung around to see whether SCOTUS was serious about Heller, and then they got McDonald. Momentum was on the RKBA side, and after taking its sweet time digesting it, such challenges are no longer laughed at by so called Constitutional scholars.
I recall vividly when studying for the Bar in 2005 the renowned Erwin Chemerenski preparing us for the ConLaw section of the multi state portion of the exam. He laughed at the 2nd Amendment and basically said, “sorry NRA fans, there is no recognized individual right to keep and bear arms.” He then moved on to more important rights like abortion (scoff).
If I had to name one person who tipped the tide in our favor I would have to give Lawrence Tribe (liberal law professor from Yale) a lot of credit. He went against the grain and launched an uphill fight maintaining his position that an honest review of the 2nd Amendment required the rulings we eventually got in the cases cited above. It's no secret that Kennedy is a strong admirer of Tribe, and I have no doubt he would have gone the other way but for his unwavering position on the matter.
Sorry for the dissertation, but for people outside the legal bubble I hoped this might explain what we are seeing. God bless and keep up the fight.
I recall reading references to Tribe.
What has bothered me for decades was the purposeful and deceitful way in which the various Circuit Courts cited the Miller case.
In Miller the Supreme Court completely ignored the government's claim that Miller and Layton would have to be members of a militia in order to be protected by the Second Amendment. The Court's decision was solely based on whether the short-barreled shotgun possessed by Miller and Layton was useful to a militia. Had it been found useful, then citizens like Miller and Layton would have the right to keep and bear it.
The "collective right" nonsense was simply created out of thin air by the Circuit Courts and left uncorrected by Supreme Courts since 1939 who were happy to see the citizenry disarmed.
It will be a supreme irony if Miller is cited in some future case supporting the proposition that the keeping and bearing of short-barreled shotguns and machine guns is protected by the Second Amendment.
Yea I remember reading the Miller case before I even went to law school.
I was shocked to see that it had nothing to do with individual vs. collective rights.
Scalia did a good job of smacking down the misapplication of Miller in the Heller decision.
I actually read Miller to say that if the weapon had been one expected to be used by the militia then the law would have been a violation of the Second Amendment.
But yes you are correct in noting that the left promptly ignored the facts and gravely distorted the meaning of Miller.
Also, that case wasn’t argued before the court like Heller was.
Not even close! Again, see Scalia’s recap of how Miller went down.
I’m wondering if the Calguns Foundation should deliberately lose the case at the state level so that they can take the case before the SCOTUS. Would the five members who ruled in favor of liberty in DC v Heller continue to rule in favor of liberty? Would the Dementocrats threaten to assassinate or punish a conservative on the Supreme Court in order to get their way, like they did with the Osamacare case (NFIB v. Sebelius)?
Oh, we have at least 3% armed citizens. My math’s a litle rough but 80 million of my closest friends and I are armed to the teeth and are a scootch bit over 3%. Semper Fi
“...or who hold a Certificate of Eligibility issued by the DOJ and already possess at least one firearm known to the state.”
the last part sounds like registration.
Tribe is at Harvard, not Yale, but your comment is otherwise spot on.
Oh my bad.
Not sure why I thought he was a Yale guy.
I guess I’m okay with being mostly spot on:-)
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.