Noted California Expert Irwin Nowick on Supreme Court Decision Interpreting the Second Amendment on the Right to Bear Arms and How It May Affect Existing and Proposed Laws

Irwin ol' son, you're missing a few things.

First, semi-auto handguns that are set up for magazines of less than 12rd capacity are very common - the classic 1911 45 being the best-known example, but also the various compact designs made up for the now-defunct Federal 10rd mag limit such as the Glock 26. So DC isn't limited to wheelguns and single-shots.

But back to California.

Heller contains direct support for the open carry of personal defensive handguns. It doesn't disconnect the "keep" and "bear" parts of the 2nd, it cites support for open carry connected to state constitutional arms clauses from the 19th Century to the present such as Ohio's supreme court ruling this century.

Well we know from Ohio what will happen then. My side will do open-carry rallies, freaked-out anti-self-defense legislators will wince and pass a respectable, objective-standards CCW system.

You were afraid of that years ago, weren't you Irwin? You pushed for a bill to eliminate the last vestige of open-carry in California involving unloaded guns. It protected re-enactors, hunters or other rural travelers. Open-carry of unloaded guns isn't at all popular among criminals of any sort, so nobody could figure out why you were pushing this turkey. You finally admitted to me out in the hall that it was about blocking open-carry protest marches patterned after what happened in Ohio to drive CCW reform.

Well that spectre is back ol' pal. In spades.

Even setting that aside, do you REALLY think the California CCW program would survive? Especially since open-carry of loaded goods is banned? The moment a court is forced to take a look at sheriff's selling permits for campaign contributions, or examines the horrific racial/gender disparities in issuance, the current program of "subjective standards" for issuance and sheriffs selling the permits for cold cash ends.

And the last remnant of Jim Crow legislation in California dies with it.

Jim March

Having read Mr. Nowick's comments and tried to understand them (I'm not from California, though I did live in the Northern part of the state for a while some time ago, so not familiar with specific legislation out there), I can see why CA legislation is so screwed up. His interpretation of 'weapons of the “brawler, ruffian, and assassin”.' would be funny if not so archaic and abused. Brawlers, ruffians, and assassins use many things to brawl, be rough, or assassinate with... any type of gun at all could be used by any one of those people, as could a car, any car, not just SUVs, any kind of knife, a baseball bat, a pool cue... are these to be banned too... would probably piss off all the cooks, baseball players and commuters, among others. We could take a page from the TSA's early list of banned items and ban nail clippers too... you could poke someones eye out with one of those if you were a brawler, ruffian, or assassin.

As for micro-stamping, anyone with a modicum of engineering understanding could tell you in a New York Minute (you should excuse the expression) how ludicrous that technology concept is and how trivial to defeat... "Um... hand me that file so I can take one swipe on the front of the firing pin... (and calling it a technology pays it a compliment it doesn't deserve)... not to mention that if it were actually developed (which it isn't yet) how easy it would be to plant a shell casing at a crime scene from an innocent persons gun that a criminal picks up at the pistol range for just such a nefarious purpose.

New York has spent $12M on COBIS (registering a fired shell casing from every weapon sold) at last count some time ago, and has had it used in exactly two cases in the whole time. $6M/case seems a little high even if they'd been successful, but they weren't.

And the concept of trying to control guns via controlling ammunition is like trying to get rid of trucks and SUVs or anything bigger than a little car by putting a restriction on large size tires.

When will the simple concept that criminals don't obey laws, so they don't impact them get through... If you outlaw guns, only outlaws will have guns, and since the Supreme Court has clearly stated that the Police are not responsible for my personal safety, it would fall to me to be so, and to restrict my ability to do so in the most effective reasonable manner is criminal in itself.

Simple fact. If they allowed legal concealed carry permit holders to carry their guns concealed on campus, the Va. Tech shooting wouldn't have had any casualties past the first room, as one of the two students in that room with concealed carry permits would have killed the crazy **** before he got to another room to kill more. Why do we create shooting galleries for crazies and criminals by creating gun free zones?

Stoney
{I carry a gun because a Cop is too heavy... and they aren't always the best caliber for the job.}

Mr. Nowick,

14th incorporation under way. Fact is, any firearm in common use will end up being legal. 14th incorporation/due process/limiting state restrictions.

This will still keep them out of the hands of felons and mentally ill, yet allow us Californians some level of comfort to enjoy our hobby, sport, rights without always looking over our shoulders.

Scalia stated it fairly straightforward. You might go back and re-read the dicision. Guns found in common use can not be banned.

Handguns, and other semi-automatics share the same technology. Even .50 caliber rifles are just larger rifles. Thus wait for the challenge.

Any law with the enforcement exemption will be challenged on a 14th basis and equal protection. So say goodby to micro-stamping, the AW ban, smart technology, etc etc.

I wouldn't be surprised is CA is forced to rethink its CCW policies in the near future.

Heller is just the beginning.

Supreme Court 2nd Amendment Ruling

I love seeing your read on the courts ruling. It is inspiring how creative your views are. You are a talented attorney. I spent some time reading and re-reading over the Courts ruling and it seems that a great deal of doors have been opened due to this ruling especially since this is the first time the court has directly ruled on the 2nd Amendment in 217 years.

Quote #1
“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

The key phrase is the ”individual right to possess a firearm”. This ends the idea that the National Guard is the militia. The key word is firearm and not handgun. The District Attorney representing Washington D.C. , Linda Singer said she framed the case to only deal with handguns and not long guns and shotguns. This was also the original goal of the supreme court since it removed the other people from the case for lack of standing. Heller is the only one that applied for a handgun permit and was denied. It seems the supreme court purposely opened the door by not using the word handguns and used firearm to include rifles and shotguns. The precedent may have been set for a handgun law but the door is open to extend the reach.
(The question now is what is a firearm?)

“Self-Defense” is another key phrase that calls out a specific reason but instead of limiting a 2nd Amendment right to specific purposes like hunting which would not have made sense in a handgun case revolving around denial of a handgun permit, they use the phrase “and to use that arm for traditionally lawful purposes”.
(What are traditionally lawful purposes?)
(How does that effect the CCW permits?)

“The militia comprised all males physically capable of acting in concert for the common defense.” This phrase just established in the courts eyes that all men (18 years or older) are the militia and it is their right that the 2nd Amendment is addressing. It goes on to say that this Amendment was to “deny Congress power to abridge the ancient right of individuals to keep and bear arms.” This seems to be a clear statement that no governing bodies can take away the right. This will have far reaching consequences for gun laws on the books. You may not be aware of this but the California DOJ states on their website that it is the LAW that requires a gun not be usable when stored or the owner is subject to liability. http://ag.ca.gov/firearms/tips.php
Here is what they advise:
“Guns and ammunition should be stored separately. Use a California-approved firearms safety device on the gun, such as a trigger lock or cable lock, so it cannot be fired. Store it unloaded in a locked container, such as a California-approved lock box or a gun safe. Store your gun in a different location than the ammunition. For maximum safety you should use both a locking device and a storage container.”

It would be rather difficult to defend themselves following this advise. This advise seems to go against the Supreme Court ruling.

(Requiring Smart Guns and Ammo purchase limits may be abridging the right to keep and bear arms?)

“Keep and Bear Arms” may be an overlooked phrase but it seems to have some support from this ruling. The court says “disassembled or bound by a trigger lock” “is hence unconstitutional” should address most of the word keep. The other phrase “to use arms for the core lawful purpose” needs to be cleared up.
(What does it mean to use arms?)
(What lawful purposes are protected?)

“Assuming he is not disqualified from exercising 2nd Amendment rights” is going to be the focus of the anti gun groups. We have no historic precedent to support the belief that a 2nd Amendment right can be disqualified. The court has just set precedent with this ruling stating that Congress can not abridge the right at the same time supports abridging that right when it comes to “dangerous and unusual weapons” found in the Miller case regarding a sawed off shotgun. In 1939 the Supreme Court for the first time determined that the 2nd Amendment did not guarantee the right of the people to own sawed off shotguns because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Up to that point, it was legal and not unusual for Americans to own all forms of weapons including machine guns and cannon.

The court also supported abridging the right when it comes to “felons and the mentally ill” as well as “sensitive places such as schools and government buildings”. This will most likely be the battleground for years to come.
A sawed off shotgun was not an uncommon tool for home defense before the Miller ruling in the 1930’s and the Court decided to uphold Miller.
(Is public housing is a government building?)
(What are dangerous and unusual weapons?)

“The courts opinion should not be take to cast doubt on longstanding …laws imposing conditions and qualifications on the commercial sale of arms“ seems to support the governments right to “impose conditions and qualifications” on the purchase. But the key words come later that “prohibition on an entire class of arms that Americans overwhelmingly choose for the lawful purpose of self-defense” “will fail constitutional muster”. 43 our of 50 states sell and allow assault weapons so “dangerous and unusual weapons” may be a stretch to enter these types of arms into that class. Even states that banned them had and have a great deal of them. The operative phrase is “arms that Americans overwhelmingly choose for lawful purposes of self-defense” is so open that it looks like assault weapons will have to revisited.
(Did this ruling overturn outright bans on popular arms?)

Up to the 1930, people had full auto weapons like gatling guns, thompson sub machine guns and actual cannon. The phrase “arms that Americans overwhelmingly choose” may have to address the time the court stated it and those types of weapons are not being chosen because they were already banned. Our founding fathers had weapons in their home on par with anything the military had and they possessed them without running into trouble with the law. Since it took 217 years for the Court to deal with the 2nd Amendment, it will be interesting how many lower court rulings and State laws will be addressed.
(Are assault weapons “Dangerous and unusual weapons”?)

“The 2nd Amendment right is not unlimited”. “Concealed weapons prohibitions have been upheld under the Amendments” but it goes on to refer to prohibitions in “sensitive places such as schools and government buildings” which even in “Shall Carry” states is banned as a practice. The burden of reason to carry just got tossed out the window which is the crux of the California law. In light of the fact that politicians, actors, attorneys and judges seems to get permits, reason for carry has become less important. Of note is the fact that the court has a problem with laws that are “not enforced arbitrarily and capriciously”. California will have a hard time showing how many people of color they gave CCW permits or show some legitimate process for denial of permit.
(What are the limits of the 2nd Amendment?)

California is a “may carry” state and has concealed carry laws that are being challenged right now in Torrance. The Court did state that firearm laws can not be “enforced arbitrarily and capriciously”.

The authority to carry a concealed weapon is set forth in California Penal Code Sections 12050-12054. These sections state in part:
12050 PC Issuance
A)The sheriff, ... upon proof that the person applying is of good moral character, that good cause exists for the issuance, and that the person applying is a resident of the county, may issue ... a license to carry concealed a pistol, revolver, or other firearm ...

B) A license may include any reasonable restrictions or conditions which the issuing authority deems warranted, including restrictions as to the time, place, and circumstances under which the person may carry a concealed firearm.

It is sad that instead of just moving to repeal the 2nd Amendment, cheap tactics that undermine our Constitution are being used and wasting so much time and energy. It will not be long for the rest of the Amendments to fall to the same demise. Can you say Patriot Act?

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