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California Supports Incorporation of the Second Amendment:

See the California amicus brief -- signed by Attorney General Jerry Brown, who was a former Governor and is talked about as a possible future candidate for the Governorship as well -- supporting certiorari in NRA v. City of Chicago. The brief expresses support for a good deal of gun regulation, but says:

The petitions in these cases should be granted to provide needed guidance on the scope of the States' ability to reasonably regulate firearms while extending to the states Heller's core Second-Amendment holding that government cannot deny citizens the right to possess handguns in their homes.

And in explaining the state's interest as amicus, at the very start of the brief, it says:

California has a strong interest in protecting the constitutional rights of its citizens. But unlike many states, California has no state constitutional counterpart to the Second Amendment. Unless the protections of the Second Amendment extend to citizens living in the States as well as to those living in federal enclaves, California citizens could be deprived of the constitutional right to possess handguns in their homes as affirmed in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).

Thirty-three other states also filed an amicus brief supporting incorporation, though they weren't the surprise that California's brief was -- 31 of them filed an amicus brief in Heller that also endorsed incorporation (footnote 6). The two new additions are Maine and North Carolina. One of the states that joined both of the multistate briefs, Minnesota, is one of the six states that doesn't have a right to bear arms provision in the state constitution; California is another.

Melancton Smith:
Yeah, it is kind of a Trojan Horse amicus...Thanks Gov er AG Moonbeam!
7.7.2009 2:44pm
alkali (mail):
The merits of the amicus argument aside, what a bizarre statement of amicus interest. "Our state's citizens must be stopped from regulating themselves! Please, oh great and powerful federal courts, review our state's laws to see which ones should be struck down!"
7.7.2009 2:50pm
Jon Roland (mail) (www):
While they are at it they ought to ask the SC to incorporate the Ninth and Tenth Amendments.
7.7.2009 2:58pm
martinned (mail) (www):
While I have no problem with California or any other state submitting an amicus brief whenever they feel like, I have to ask: If they care about the second amendment so much, why not put one in the state constitution. I think it's been sufficiently established that amending the California constitution is about as easy as sneezing, so what's the holdup?
7.7.2009 3:00pm
U.Va. Grad:
While they are at it they ought to ask the SC to incorporate the . . . Tenth Amendment[].

What good would incorporating the Tenth Amendment against the states do? "Okay, state governments, just to be clear, you have all the powers not expressly given to the federal government, and we mean it this time!"
7.7.2009 3:04pm
ruuffles (mail) (www):

I think it's been sufficiently established that amending the California constitution is about as easy as sneezing, so what's the holdup?

I had the same question. I suspect the answer is connected to the ease with which Boxer and Feinstein get re-elected.
7.7.2009 3:04pm
Jon Roland (mail) (www):
U.Va. Grad:

What good would incorporating the Tenth Amendment against the states do?

It would establish jurisdiction of federal courts to decide cases between a citizen and his state in which the citizen claims the state is exercising or seeking to exercise powers not delegated to it in its constitution.
7.7.2009 3:10pm
AD (mail):
Incorporation would open many of CA's firearms regulations to challenge. DoJ in its' brief cites a concern for CA's being able to keep firearms for home protection, which is part of the Penal Code, but says nothing about the "bear" part of the 2nd, which could upset the "may issue" CCW regime that is established law in CA. That's not even considering the many restrictions on purchase that restrict the availability of quality arms of all types to CA residents. I believe a lot of this area is covered in suits that Gurra has filed against entities of the State here in CA.
Frankly, I am surprised that Jerry Brown signed this. Perhaps he got a heads-up from Gallop on their new poll re Conservatives.
7.7.2009 3:18pm
Steven Den Beste (www):
That seems an extremely strange justification. If California is concerned about whether its citizens have a state constitutional right to own firearms, why doesn't California change its constitution?

Why does it look to the federal courts to do the work for it?
7.7.2009 3:20pm
Owen H. (mail):
Would you prefer letting the true anti-gun folks do so at the state level, and have no recourse?
7.7.2009 3:26pm
green-grizzly (mail):
I am governor Jerry Brown
My aura smiles
And never frowns
Soon I will be [governor] [again]
7.7.2009 3:26pm
Jon Roland (mail) (www):
Steven Den Beste:

Why does it look to the federal courts to do the work for it?

Cheaper. Constitutional amendments in California are not so easy as to be less expensive than filing an amicus brief.
7.7.2009 3:28pm
Jon Roland (mail) (www):
Jerry Brown has a long history of being friendly to the RKBA, despite being a Democrat. He can be quite libertarian on some issues.
7.7.2009 3:30pm
CatoReansci (mail):
Looks like California needs a Constitutional amendment proposition on the next ballot to solidify a state RKBA!
7.7.2009 3:38pm
PaulTX (mail) (www):

If California is concerned about whether its citizens have a state constitutional right to own firearms, why doesn't California change its constitution?


The attorney general made the decision to join the amicus brief; the attorney general cannot make a decision to amend California's constitution.
7.7.2009 3:40pm
Houston Lawyer:
Until recently, over large swathes of the country, Democrats would be more likely to be gun owners than Republicans. So I am seldom surprised to see Democrats take a pro right to keep and bear arms position.

It would seem to me that on a position where California's laws are not directly at issue, the Attorney General can take whatever position he pleases. I think it would be different if a California law were being challenged.
7.7.2009 3:40pm
Alec Rawls (mail) (www):
California does not have an EXPLICIT right to bear arms, but it has something that is perhaps even stronger, which can be taken to imply a right to bear arms: a right to self defense, including the right to protect property. This is right at the beginning of <a rel="nofollow" href="http://www.leginfo.ca.gov/.const/.article_1"><a rel="nofollow" href="">Article I</a></a>: <blockquote>CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS


SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
</blockquote>
7.7.2009 3:41pm
Hank Bowman, MD (mail) (www):
Is Moonbeam hoping the USSC will decide NOT to incorporate? Thereby overturning the 9th circus?
7.7.2009 3:51pm
Mark N. (www):

DoJ in its' brief cites a concern for CA's being able to keep firearms for home protection, which is part of the Penal Code, but says nothing about the "bear" part of the 2nd, which could upset the "may issue" CCW regime that is established law in CA.

Given the wording of the opinion in Heller, I would be extremely surprised if the US Supreme Court finds that the 2nd Amendment protects a right to carry firearms concealed in public. On originalist grounds, I could actually see a better argument for open-carry. And on stare decisis grounds, laws regulating the concealment of firearms in public date back to 1811 and have never been invalidated.
7.7.2009 4:15pm
jon huettl (mail):
Back in 1850 when the Republic of California became a several
State of the United States of America, the constitution for the State was indeed silent on the BILL of RIGHTS. All rights of the people were silent.

Just remember that when the new State Legislature met at the State Capital in Benecia one of the things they worked on was a rule that horses would be hobbled or attended so that they (horses) would not stray into the building seeking shade, and that pistols and daggers would be left in the hallway while business was being conducted.


The State Constitution was SILENT, and the Citizens of the Republic remembered their rights, and as Citizens of the State of California they still remembered their rights.

A Republic first then a State but still a REPUBLIC as far as this Native Son of California rights are concerned.
7.7.2009 4:17pm
geokstr (mail):
Can someone please explain to this non-lawyer how incorporation of the 2A would be good for gun rights, in the current political environment?

Suppose that CA smells a couple more liberals being appointed to the SCOTUS by Obama after Sotomayor, like say if both Scalia and Kennedy decide to hang it up in the next 8 years, along with Breyer/Ginsburg. Put Deval Patrick and Eric Holder, or even one of the Clintons, on the court and watch how easily they could find some leaky penumbra somewhere emanating a government right to disarm the the populace. The Commerce Clause seems to cover every other nuance of human activity in the US, so why not gun ownership as well?

Roe v Wade overturned something like 30+ states abortion laws all at once. Continual efforts at the state level to ramp it back a little since then have proven pretty futile. Once a SCOTUS ruling limiting gun rights was in force, imagine how difficult it would be to try to fight that on a state by state basis.

Maybe that's why (at least partly) Montana is trying to pre-empt this with its laws on limiting the ability of the feds to regulate gun ownership in their state.
7.7.2009 4:19pm
krs:
Is this the same guy who made the distractingly bad arguments in the Prop 8 case?
7.7.2009 4:39pm
RKV (mail):
It all comes down the the definition of reasonable regulation. The RATs want reasonable regulation to mean quite a bit less than many of us do. For example, how's about this, you can own a handgun in your own home, but pay a $5000 per round tax on ammunition. There is no way this is going to be played straight by the legislature, elected officials or judges in CA. Sadly. My personal suggestion is we need to enforce Article 1 Section 8 - that the militia has certain missions under the Federal Constitution, and arms which apply to government employees to fulfill said missions and can be borne (keep AND bear) are protected by an incorporated 2nd. And that includes bayonets, saps (which cops can have in CA, but citizens cannot), gas masks, ammo, etc.
7.7.2009 4:47pm
Clayton E. Cramer (mail) (www):
If you had told me in 1989 that this would happen, I would have sarcastically responded, "Yeah, and Poland and Lithuania will be among our closest allies, fighting alongside us in Afghanistan."
7.7.2009 4:49pm
Leo Marvin (mail):
Is the decision to file the brief the AG's or the governor's?
7.7.2009 4:54pm
Leo Marvin (mail):
Never mind. Since the AG is elected, I guess it must be his.
7.7.2009 4:54pm
Perseus (mail):
I suspect the answer is connected to the ease with which Boxer and Feinstein get re-elected.

That's Senator Boxer to you!
7.7.2009 4:55pm
Clayton E. Cramer (mail) (www):

And on stare decisis grounds, laws regulating the concealment of firearms in public date back to 1811 and have never been invalidated.
Not quite. Generally, true, but only because open carry was allowed. Bliss v. Commonwealth (Ky. 1822) struck down a concealed carry law for violating the Kentucky Const. RKBA provision. And there are a number of decisions, such as People v. Liss (Ill. 1950) that suggest that such laws needed to be narrowly tailored to affect criminals.
7.7.2009 4:55pm
RKV (mail):
Clayton - LOL. But this is far from over, and as has been said before, "the devil is in the details." When I can sue the State of California for recovery of the fees I paid to register my AR, and get them back with interest, then I'll know we turned the corner. As of now, large fractions of CA code relating to arms are unconstitutional on their face. We've all know that, the legislature knew that when they passed those laws, and they didn't care. No judge would enforce either the 2nd or as noted above, Article 1 Section 1 of the state's own constitution. Repeal or nullification is what is called for. Not reasonable regulation.
7.7.2009 5:00pm
John Powell:
BTW, just needed to note the amicus is also written in support of McDonald v. Chicago, in addition to NRA v. Chicago.

McDonald is a much more interesting case, especially to the Volokh Conspiracy crowd, as it is trying to overturn Slaughterhouse. In theory, that would get rid of this whole selective incorporation nonsense and apply the entire Bill of Rights (at least the first 8) against the states. That may be another reason AG Moonbeam is interested in this case.

http://en.wikipedia.org/wiki/McDonald_v._Chicago

http://www.chicagoguncase.com/
7.7.2009 5:35pm
Robert West (mail) (www):
Geokster: most of the other amendments - including the first, the fourth, the fifth, and the sixth - have been incorporated against the states.

I think the argument is that treating the second amendment the same way other amendments are treated would strengthen the rights protected by the second amendment - because there's no consistent way to argue for removing that incorporation *just* for the second amendment, and almost nobody who opposes gun rights will support undoing the incorporation of the fourth amendment.

I suspect there's a fair amount of support in the legal academy for the position "well, we thought that the second amendment didn't protect an individual right, but if it does, then of course it's incorporated."
7.7.2009 5:43pm
zippypinhead:
If you read the other state AGs' amicus brief in support of the cert petition compared with California's, you will see a fairly stark difference - the other 33 states specifically advocate invalidating Chicago's handgun ban on an incorporated Heller analysis. California, however, limits its advocacy to bare selective incorporation of the Second Amendment, but makes veiled suggestions that most "reasonable" gun control - including the California "safe" handgun list that is currently under attack in District Court, and the 9th Circuit's recent Nordyke v. King decision banning guns/gun shows on county property - should nevertheless survive.

California's position is best viewed as a variant of the old truism "better to be on the train than under it." A.G. Brown would be perfectly happy with an incorporated Second Amendment that permits outcomes like Nordyke. If one believes that it's overwhelmingly likely that SCOTUS is going to rule for incorporation through the 14th Amendment's due process clause, it's rational to advocate that it be done in a case that doesn't directly or by close factual analogy attack your own "reasonable" gun control laws. In other words, it's better to have SCOTUS make incorporation law in NRA/McDonald or Maloney than to revisit, and possibly revise the holding on the merits, in Nordyke. Which is what A.G. Brown advocated here. And by jumping on board the incorporation train, California can also argue that in addressing the question, SCOTUS should not go further and also touch issues that could cast the "gun-free public building" holding in Nordyke into doubt. And then if you're really greedy, you can hope that it takes a few years more for troubling issues like standard of review or out-of-the-home RKBA to filter up to the SCOTUS docket, and that perhaps the next few vacancies President Obama gets to fill on the Court will be to replace majority votes in Heller.

Thus California's otherwise surprising position actually makes strategic sense from a "reasonable" pro-gun control posture, IHMO.
7.7.2009 5:44pm
Californio (mail):
Ah. native son of california. Wilst thou whisper the Mass at my ear?

Some one named "Huettl" might just as well be named "Patty".

P.S. - the right to keep and bear arms should not be reduced to "keeping handguns at home.." seems like a particularly pinched reading of the second amendment.
7.7.2009 6:42pm
Kevin Murphy:
If there is any meaning left to the 14th's Privileges and Immunities clause, a right that exists in 44 state constitutions and the federal Constitution would seem to be a good candidate for inclusion.
7.7.2009 6:50pm
CDR D (mail):
>>>Constitutional amendments in California are not so easy...<<<




This is true. The legislature, by 2/3 majorities, could place a proposed amendment on the ballot. But given the current makeup of the legislature, that's not going to happen.

The initiative process requires a larger number of signatures for a Constitutional Amendment than a simple proposition. About 10 years ago, there was an initiative to add the RKBA to the Cal Constitution, but it was an entirely grass roots effort. Purely volunteers, no paid canvassers. No money from NRA or any others. It came up short on signatures for qualifying, but not by very much.

An effort backed with some bucks by NRA and other pro RKBA groups would probably be able to garner enough signatures to qualify.
7.7.2009 7:39pm
PersonFromPorlock:
Californio:

P.S. - the right to keep and bear arms should not be reduced to "keeping handguns at home.." seems like a particularly pinched reading of the second amendment.

Well, as I've said on several threads here, once you get past the happytalk Heller amounts to "The Second Amendment recognizes an individual right. So?"
7.7.2009 7:53pm
CDR D (mail):
>>If California is concerned about whether its citizens have a state constitutional right to own firearms, why doesn't California change its constitution?

Why does it look to the federal courts to do the work for it?<<






Although some 44 States have RKBA provisions in their constitutions, which is nice, the Supremacy Clause of the US Constitution, specifically the treaty power, would allow the President and the Senate to obliterate those provisions.
7.7.2009 8:09pm
cboldt (mail):
-- Heller amounts to "The Second Amendment recognizes an individual right. So?" --
.
It also amounts to "While upholding Miller, we also order the federal courts to apply Miller for the opposite of what it stands for."
.
And on the individual right, it's to a handgun, in the home, with a license, and no expressed limit on the hoops the licensee must go through, nor any discussion on "by model" limitation on the handgun.
.
The 9th Circuit should be deciding it's sua sponte petition for rehearing Nordyke in a week or two. It'd be a hoot if they "resolve" the split.
http://wiki.calgunsfoundation.org/index.php/Nordyke_v._King
7.7.2009 8:24pm
Leo Marvin (mail):
Zippy, agreed.
7.7.2009 8:29pm
Oren:

Although some 44 States have RKBA provisions in their constitutions, which is nice, the Supremacy Clause of the US Constitution, specifically the treaty power, would allow the President and the Senate to obliterate those provisions.

How many times does this bullshit have to come up? Reid v. Covert shut the door on this ridiculous reading of the supremacy clause so hard that your ears ought to still be ringing.

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights -- let alone alien to our entire constitutional history and tradition -- to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.
7.7.2009 8:50pm
CDR D (mail):
>>>How many times does this bullshit have to come up?<<<



'scuse me, pal, but I am aware of the cite you provide, and there are plenty of others including *Geoffroy v. Riggs*.

My point was simply that if the 2A of the US Constitution does not apply to the states, then the state constitutional provisions are not immune from the treaty power.
7.7.2009 8:56pm
Officious Intermeddler:
The Nordykes' en banc brief reads like the kind of thing one of my law professors described as a, "Your Honor, the defendant is an asshat," brief.

Not that there's anything wrong with that. Just sayin'.
7.7.2009 8:58pm
cboldt (mail):
-- My point was simply that if the 2A of the US Constitution does not apply to the states, then the state constitutional provisions are not immune from the treaty power. --
.
But wouldn't the international treaties be limited by the 2nd? IOW, the treaty would be quasi-federal law if self-executing, and literally federal law if carried out by enabling legislation, and thereby subject to the 2nd. State constitutions would be irrelevant.
7.7.2009 9:06pm
Oren:

My point was simply that if the 2A of the US Constitution does not apply to the states, then the state constitutional provisions are not immune from the treaty power.

But the treaty power is not immune from the 2A irrespective of its incorporated status.

Geoffroy v. Riggs is inapt, because it was not claimed that the treaty violated the Federal Constitution, only the State one.
7.8.2009 1:44pm
New Pseudonym:

I suspect the answer is connected to the ease with which Boxer and Feinstein get re-elected.

That's Senator Boxer to you!



Sorry, Ma'am.
7.8.2009 7:53pm

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