I am curious.

On the position of this forum on Prop 8 in California.

Is there any overlap? Prop 8 was an amendment to the State Constitution to remove rights from citizens. Do any here see any threat to the right to bear arms in the outcome of this vote?

Really a state vs. federal question kind of apples and oranges.

David

They have an assault weapons ban (which is about as mallable as Play-Doh), they have magazine limits, they have waiting periods, they effectively have no concealed carry, they have mandatory loaded-chamber indicators, they have mandated magazine disconnects, they have mandatory "Attorney General must inspect, test, and approve each handgun model before it can be sold here" procedures, and they mandate that all private sales must go through a gun dealer and background check.


I don't think the 2nd Amendment is incorporated yet, so presumebly the people of Califoria could get a ballot initiative going to either modify state laws to prohibit some kind of guns (or all guns, or all handguns, or whatever) OR modify the state constitution to accomplish the same.

As krispos42 pointed out CA has already done all but an outright ban.

I am not sure legally "how" gay marriage was made legal in CA.
What was the exact technical process from a legal standpoint?

The reason I ask is that determines how "at risk" a right, any right is.

CA provides no 2nd amendment like provision in its state constitution so it would not require changing the constitution to ban weapons (or enact any type of gun control measure). A simple 51% vote of the legislature could completely ban all forms of guns, and require mandatory turn in for existing weapons. Compare this to a state like Maine where the Constitution states "Section 16. To keep and bear arms. Every citizen has a right to keep and bear arms and this right shall never be questioned."

Now it is unlikely CA WOULD ban all guns but they COULD ban all guns.

Why wouldn't they? Heller vs DC found that an "individual right to keep & bear arms" exists. Since the case involves DC and the Supreme Court has a history of resolving the issue as narrowly as possible this only applies to federal law. The courts didn't consider if this applies to the states. It hasn't (yet) been legally proven that it is incorporated against the states. This will be the next milestone in RKBA. The stricter the ban the "cleaner the case".

If CA banned and confiscated all weapons it would be the perfect case. A complainant would sue under the grounds that their 2nd amendment right is infringed. The local courts would rule the 2nd doesn't apply and it would be appealed all the way to Supreme Court. Assuming the Supreme Court does the "right thing" and rules the 2nd is incorporated it would expand the narrow (but strong) def in Heller case nationwide. All bans everywhere would be overturned and future bans could be challenged before enacted. Local courts would have a precedent set by SCOTUS so it is unlikely future cases would even make it that high. All laws could be argued the intent is to deprive the right.

Obviously the antis are aware of this. They will try to stay in the grey area to make the case less "clean" more complicated to avoid a clear ruling.

So back to your question.
There was no constitution right protecting marriage (gay marriage) at either the state or federal level. This makes the situation a little different.

More broadly than the Gay Rights issue I find the Prop 8 decision dangerous. It gives to much power to the "mob". If 51% of the country believed women shouldn't be allowed to work would that be ok? If 51% of people believed that other people could be owned as property would that be ok? The founding fathers were wise enough to know that a true democracy is mob rule with no rights for the 49%. Given that I don't think they would approve of the idea of sweeping changes being passed via Prop.

the gun militants' wet dream. Which is pretty much exactly all it will ever be, of course. What tosh.


There was no constitution right protecting marriage (gay marriage) at either the state or federal level.

Really? You've never heard of the equal protection clause?

Damn, I love it here. One can learn so much. Hahahaha.

How does one "challenge" a proposition on a ballot on constitutional grounds?

As a matter of fact, as I understand it, constitutional challenges to the outcome of the vote on Proposition 8 are very much in the works.

Gosh. I google "proposition 8" challenge and what do I see at the top of the results list?

http://archives.chicagotribune.com/2008/nov/05/nation/chi-081105-gay-marriage-ban-california

(the date making it clear that this is *after* the proposition was voted on)

Wednesday, November 05, 2008
Gay-rights advocates to challenge Proposition 8

LOS ANGELES -

After losing at the polls, gay-rights advocates filed a legal challenge Wednesday in California Supreme Court to Proposition 8, a long-shot effort that the measure’s supporters called an attempt to subvert the will of voters.

Lawyers for same-sex couples said they will argue that the anti-gay-marriage measure was an illegal constitutional revision – not a more limited amendment, as backers said.

The legal action contends that Proposition 8 actually revises the state constitution by altering such fundamental tenets as equal-protection guarantees. A measure to revise the state constitution can be placed before voters only by the Legislature.

See what you can learn if you hang around here?


The problem is that Proposition 8 amends the state *constitution*, not merely legislation. Challenging a provision of a constitution on constitutional grounds ... well, that's a tough one to get one's head around.

It is entirely possible to have conflicting provisions in a constitution. Not always sensible, but not always possible to avoid. In this case, not remotely sensible, and entirely avoidable.

The U.S. Constitution takes precedence over state constitutions, so it's entirely possible for a constitution to be unconstitutional (as :crazy: as that sounds). Some posters upthread have made it sound as though CA could ban all guns with the passage of legislation or an amendment - that isn't really the case (f I understand correctly) because the 2nd Amendment as interpreted by the Supreme Court would trump any state action. Of course, the other implication of that is that, as strict as CA gun control laws are, in the absence of any comment from SCOTUS they are in fact constitutional.

As for Prop 8, it seems to me that the amendment/revision argument really is best described as challenging the initiative, not the outcome of the vote. If the revision argument is successful the initiative itself will be void after the fact (because the process of constructing the initiative was itself unconstitutional) - the outcome of the vote will not need to be challenged as it will become moot. Challenges to the outcome of the vote could be brought up at the federal level, if a case can be made that prop 8 violates the US Constitution...

Prior to Heller there was no precedent that the 2nd means an "individual right" therefore you couldn't sue the state as being unconstitutional until you proved it was unconstitutional in the first place. Kinda getting the Cart before the Horse.

Now post-Heller we still don't have an incorporation test case "yet". I use the term yet because it will happen just a matter of when and where. We want the incorporation case to be as "clean" as possible.

What do I mean by incorporation?
Technically the BoR is a check to protect (not grant) rights from being infringed by the FEDERAL govt. It says nothing about the states. The founding fathers were less concerned about local govt then they were of an all powerful federal govt. They envisioned a govt that was more "the United STATES of America" than the "United States of AMERICA" it is today.

As an example lets look at the first; it starts "Congress shall make no law" it doesn't say "Congress or state legislatures shall make no law". Now from a common sense point of view OF COURSE it makes sense the limitations of the feds should also be a limitation on the states. Common sense isn't a legal defense.

For a long time the position was held that BoR protects against federal infringement ONLY. Starting in the 1890s that began to change. Sadly SCOTUS was "stupid" rather than keep it simple and say "BofR is incorporated against the states" in it's entirety they began a process of selective incorporation. Each amendment was incorporated separately. Some were found to be incorporated, some not, and some haven't ever been argued so we really don't know where they stand.

It was a very stupid move by SCOTUS and creates a lot of ambiguity and lack of consistency.

The bad news: the last time a case involving the 2nd came up it was prior to the period of "selective incorporation" (in the period of no incorporation) so we have no real precedent either way.

For the last 30-40 years there have been no further cases involving Incorporation because prior to Heller it hadn't yet been proven the 2nd means what the 2nd means. You can't fight for incorporation of a right that you haven't proven exists yet. Heller grants the right but because DC is not a state (DC was picked intentionally) the question of incorporation wasn't addressed.

Currently there is an absolute ban on handguns in Chicago, almost exactly the same as the unconstitutional ban in DC. So to say CA couldn't ban guns isn't exactly accurate. Chicago has and does ban guns. Until the 2nd is proven to be incorporated against the states Heller is no protection from state or local tyranny.

meant that everything which was explicitly in the US Const. automatically bound the state and local governments as well. This process of piecemeal incorporation seems like a bad idea to me - I don't really see the point. Thanks for the informative reply...

The Supreme Court tries to avoid overturning precedent.

Initially SCOTUS ruled no incorporation.
Rather than say SCOTUS was wrong later they tried to skirt around that by ruling the first selective incorporation decisions.

If is a "legacy" we have been stuck with ever since.

If you are interested Wikipedia has a pretty balanced and interesting (in a Constitutional Scholar kinda way) article:
http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

Personally I think the 2nd will be incorporated.

The key is to get a "clean case" one where incorporation is the ONLY issue. The antis don't want an incorporation ruling so they will try to get the case resolved without answering the incorporation issue. The goal for groups backing pro-rights lawyers is to pick the perfect case. One that almost exactly matches Heller except is outside DC. Then the question becomes very black and white.

Heller says this in Unconstitutional, xyz has the same law if the 2nd is incorporated then xyz is also Unconstitutional. If the 2nd is not incorporated it is valid.

That leaves no room to maneuver. Such a case will go all the way to SCOTUS and we will get the final answer.

I am confident (assuming the court doesn't change) that the 2nd will be found to be incorporated against the states.

Personally for me it doesn't matter. VA Constitution protects RKBA in it's state constitution and state law preempts any local laws (gun-control can ONLY be decided at state level). For those living in states/cities that are less concerned about protecting rights of their citizens it will be a HUGE ruling.

Is there a constituional protection for straight marriage ?

A law that was passed as a voter initiative in 2000, which said the same thing as Proposition 8 (except it was in the code rather than the state constitution).

The state legislature is way out of touch with the will of the people here.

MPK, I searched some gun forums for "Prop 8" in November and found at least one thread with a lively discussion about it. The gun people were pretty split down the middle. Half of them see your overlap- taking away rights is taking away rights, and they would be hypocrites to vote Yes on 8 while wanting to have their own rights as shooters left alone.

The other half didn't care about any of that, "The bible says....", etc.

Incidentally I posed a question similar to yours here in the GLBT forum, but only got a couple of replies, one encouraging, and one ad-hominem.

It sure would be something if we could unite the 2 groups in what looks to me to be a common cause.

Glad to have found your post.

-Adjective Noun

much to the chagrin of many 2nd Amendment opponents who post here, who love to proclaim all who care about the preservation of the 2nd as an individual right, to be right wing, misogynist, redneck assholes. The truth is 2nd Amendment supporters are a cross section of society. I (and I believe others who post in this forum) didn't respond to this thread when it was first posted because I suspect the OP was sitting in his/her cubicle at work one day lamenting all those right wing, misogynist, redneck gungeon assholes who muck up his/her twisted view of liberalism, when a visible light bulb appeared above his/her head and illuminated the entire building, "Hey", he/she said as he/she rubbed his/her wittle hands together, "I can show all those right wing, misogynist, redneck gungeon assholes for what they truly are once and for all", he,he,he...<posts carefully worded trap in the right wing, misogynist, redneck gungeon>..he,he,he...

Now I don't know if this is the case, just a suspicion since I haven't seen the OP post here much if at all before or after this off topic stretch of a post.

I actually did think there is common cause here. And I'm a ceramics teacher who has a household with guns.

I'm going to try to search for the links. If you have any suggestions I would love it if you could post some links from other forums. (I was a little intimidated when I saw the replies in here about specific gun laws in California.)

MPK,
This is one of the threads I was referring to. I googled < "prop 8" gun forums >.
http://opencarry.mywowbb.com/forum12/18367-1.html

I claim no expertise in CA gun laws, but I am a shooter here. I think the most recent bad one was for microstamping.

Adjective Noun

That's exactly the sort of thread I was looking for. Off to read. :hi:

what a stupid idea that is, on so many levels. Any word on what the reaction to it is going to be? I'll bet a lot of manufacturers just stop selling to CA entirely. Microstamping will be a tiny, garage-based industry from the one guy who holds the patent on it, and he will go under because no one informed about microstamping will ever be willing to pay that bastard's bills.

First it was the Assault Weapon ban/gun registration.

Now its Gay rights...

i guess the only right you have in California is to .....OBEYYYYYYYYYY......

I guess AHHrnold doesn't feel his peasants need any rights.

I'm still in shock Prop 8 passed in California. Unfortunately, that pretty much means it can hit anywhere here on the West Coast, so you can bet the fuckers behind it are going to be running up petitions here in Wa, and Oregon. We DID pass I-1000, so maybe there is some hope, now that people like me went 'oh shit' after that election, and both states are fairly progressive..

As to the original question, in that state, sure, the rights of gun owners are at risk in that state. Nothing new really. (In Wa, it is not so easy to modify the state Constitution)

Civil rights are civil rights. As far as I'm concerned, anyone who supports some but not others hasn't thought things through very well.

mainly because prop8 was pretty focused, it wasn't a broad anti-gay rights proposition, it only affected marriage, and a citizen's right tomarriage has absolutely nothing to do with their right to own firearms, legally or otherwise.