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http://www.californiaprogressreport.com/2007/03/dc_gun_case_lik.html
March 20, 2007. 28 comments. Topic: Gun control
D.C. GUN CASE LIKELY TO VALIDATE CALIFORNIA’S FIREARM REGULATORY SCHEME – ENACTED BY Democrats OVER N.R.A. OBJECTIONS
By Bill Cavala
A veteran of over 30 years in Sacramento
A Federal Appeals Court recently struck down as unconstitutional a Washington City ordinance banning private possession of handguns, saying the law violated the Second Amendment which protects the “right of the people to bear arms”. What the DC Circuit Court granted in terms of the relief requested and granted the in opinion by Judge Larry Silberman was to create a regulated system of acquisition and possession (including carrying) of registered handguns that people could have on their private property and in the case of conventional firearms (including handguns) that were capable of use (not being required to be locked and unloaded at all times).
What the Cato plaintiffs asked for was a system somewhat comparable to California law. The relief sought was narrow because – as pointed out in a Washington Post story – CATO did not want to get into bed with the National Rifle Association. Also, an unrestricted individual right would raise any number of concerns.
This decision – if reviewed and upheld on the same grounds by the US Supreme Court – would reverse decades-old precedent that held that while the Second Amendment prohibited the Federal Government from outlawing state “militias” and their arms, it provided no Constitutional authority for individuals to “bear arms”.
While this case would appear to validate the long-standing position of the NRA on the Constitutional right of individuals to possess firearms, it is unlikely to say the least that it will have any substantial effect on those State’s that have established rational regulatory schemes.
As noted above, what the DC Circuit upheld was licensing and registration and at the same time stated other regulations were allowed. The second part of the opinion also clearly allows for the regulation – indeed banning - of a sub category of weapons that were not deemed to be useful in civilized warfare – were not, therefore, considered “arms”. That would include sawed-off shotguns, very small sized handguns, “freak concealable” weapons, “machine” guns – automatic rifles, restrictive rules on carrying guns in public, as well as barring various categories of persons from possessing covered “arms”. In addition, weapons of mass destruction (at that time cannons) could be banned in the hands of the general public as those weapons were viewed at Common Law as weapons that exclusively were under the control of the state.
The reason for this nuanced position is that the American Revolution was a middle-upper middle class, men of wealth driven revolution. The founders view of who should own guns were property owners – be they farmers in the backwoods or Tidewater plantation owners or shop keepers who owned a row house. They were steeped in the history of the Common Law and they had definitive views on a range of subjects – including acquisition and possession of what type of weapons being protected and by whom. They wanted enough civilian access to firearms to keep a tyrant from occurring but enough centralized control so that there would be no “mobocracy”.
The founders in the manner they wrote the Constitution intended: (i) civilian control of the military; (ii) no private armies and navies to challenge a democratically elected government; and (iii) an armed middle class citizenry to prevent a new King George. This is the view of numerous State Appellate Courts which have interpreted their State Constitutions on the subject and which were cited in Silberman’s opinion.
That is why, for instance, the Supreme Court upheld registration-licensing when it upheld the original National Firearms Act in 1937 in United States v. Sonzinsky, 300 U.S. 506 (1937) which upheld the National Firearms Act. NFA was a FDR Depression Law that regulated “gangster weapons” via an excise tax system. In Sonzinsky, the United States Supreme Court unanimously held that NFA’s registration-reporting were valid incidents of a excise tax system. While the 1934 version of NFA was struck down in 1968 on self-incrimination grounds – not Second Amendment grounds – a revised NFA was unanimously upheld by the US Supreme Court in 1971.
Here in California the laws governing firearms have been rationalized over the last 20 years – in spite of NRA opposition – by the philosophies of two influential men who worked in that field: attorney-at-law Irwin Nowick, who has served as a senior staffer for both the Assembly and Senate Democratic majorities and Kent DeChambeau who lobbied for the California Rifle and Pistol Association in the 1980’s. Both men read the Second Amendment as creating a restricted individual right (such that guns per se cannot be banned), but that registration and neutral licensing by State’s is constitutionally permissible as well as banning certain types of “ruffian-gangster” weapons.
If the US Supreme Court does accept this decision on appeal and ratifies its position, it will undoubtedly also ratify California’s “assault rifle” ban – the law outlawing firearms originally designed for automatic fire and easily convertible to their original design purpose.
The NRA has fought responsible and reasonable regulation for years under the flag of the Second Amendment.
When the US Supreme Court finally speaks clearly on the issue and tells America that there is a Constitutionally protected right to bear arms – but that such a right can be abridged by a State’s public safety interest against the dissemination of sawed-off shotguns and rifles, bombs, cannons, machine guns, regulated carrying in public, etc. – the views of Nowick and De Chambeau as embodied in California’s firearm regulatory scheme will have been verified. The NRA will have to seek a new rationale for its opposition to rational firearm regulations.
Bill Cavala was Deputy Director of the Assembly Speaker’s Office of Member Services where he worked for over 30 years.
He attended undergraduate and graduate school in the 1960’s and received a doctorate in political science at UC Berkeley. He taught political science at UC Berkeley during the 1970's while he worked part-time for the State Assembly.
Cavala left teaching at UC Berkeley and went to work for Assembly Speaker Willie Brown in 1981 until his tenure as Speaker ended in 1995, and he has worked for his five successors as Speaker up to and including Speaker Fabian Nunez.
Mr. Cavala manages election campaigns for Democratic candidates.
March 20, 2007. 28 comments. Topic: Gun control
D.C. GUN CASE LIKELY TO VALIDATE CALIFORNIA’S FIREARM REGULATORY SCHEME – ENACTED BY Democrats OVER N.R.A. OBJECTIONS
By Bill Cavala
A veteran of over 30 years in Sacramento
A Federal Appeals Court recently struck down as unconstitutional a Washington City ordinance banning private possession of handguns, saying the law violated the Second Amendment which protects the “right of the people to bear arms”. What the DC Circuit Court granted in terms of the relief requested and granted the in opinion by Judge Larry Silberman was to create a regulated system of acquisition and possession (including carrying) of registered handguns that people could have on their private property and in the case of conventional firearms (including handguns) that were capable of use (not being required to be locked and unloaded at all times).
What the Cato plaintiffs asked for was a system somewhat comparable to California law. The relief sought was narrow because – as pointed out in a Washington Post story – CATO did not want to get into bed with the National Rifle Association. Also, an unrestricted individual right would raise any number of concerns.
This decision – if reviewed and upheld on the same grounds by the US Supreme Court – would reverse decades-old precedent that held that while the Second Amendment prohibited the Federal Government from outlawing state “militias” and their arms, it provided no Constitutional authority for individuals to “bear arms”.
While this case would appear to validate the long-standing position of the NRA on the Constitutional right of individuals to possess firearms, it is unlikely to say the least that it will have any substantial effect on those State’s that have established rational regulatory schemes.
As noted above, what the DC Circuit upheld was licensing and registration and at the same time stated other regulations were allowed. The second part of the opinion also clearly allows for the regulation – indeed banning - of a sub category of weapons that were not deemed to be useful in civilized warfare – were not, therefore, considered “arms”. That would include sawed-off shotguns, very small sized handguns, “freak concealable” weapons, “machine” guns – automatic rifles, restrictive rules on carrying guns in public, as well as barring various categories of persons from possessing covered “arms”. In addition, weapons of mass destruction (at that time cannons) could be banned in the hands of the general public as those weapons were viewed at Common Law as weapons that exclusively were under the control of the state.
The reason for this nuanced position is that the American Revolution was a middle-upper middle class, men of wealth driven revolution. The founders view of who should own guns were property owners – be they farmers in the backwoods or Tidewater plantation owners or shop keepers who owned a row house. They were steeped in the history of the Common Law and they had definitive views on a range of subjects – including acquisition and possession of what type of weapons being protected and by whom. They wanted enough civilian access to firearms to keep a tyrant from occurring but enough centralized control so that there would be no “mobocracy”.
The founders in the manner they wrote the Constitution intended: (i) civilian control of the military; (ii) no private armies and navies to challenge a democratically elected government; and (iii) an armed middle class citizenry to prevent a new King George. This is the view of numerous State Appellate Courts which have interpreted their State Constitutions on the subject and which were cited in Silberman’s opinion.
That is why, for instance, the Supreme Court upheld registration-licensing when it upheld the original National Firearms Act in 1937 in United States v. Sonzinsky, 300 U.S. 506 (1937) which upheld the National Firearms Act. NFA was a FDR Depression Law that regulated “gangster weapons” via an excise tax system. In Sonzinsky, the United States Supreme Court unanimously held that NFA’s registration-reporting were valid incidents of a excise tax system. While the 1934 version of NFA was struck down in 1968 on self-incrimination grounds – not Second Amendment grounds – a revised NFA was unanimously upheld by the US Supreme Court in 1971.
Here in California the laws governing firearms have been rationalized over the last 20 years – in spite of NRA opposition – by the philosophies of two influential men who worked in that field: attorney-at-law Irwin Nowick, who has served as a senior staffer for both the Assembly and Senate Democratic majorities and Kent DeChambeau who lobbied for the California Rifle and Pistol Association in the 1980’s. Both men read the Second Amendment as creating a restricted individual right (such that guns per se cannot be banned), but that registration and neutral licensing by State’s is constitutionally permissible as well as banning certain types of “ruffian-gangster” weapons.
If the US Supreme Court does accept this decision on appeal and ratifies its position, it will undoubtedly also ratify California’s “assault rifle” ban – the law outlawing firearms originally designed for automatic fire and easily convertible to their original design purpose.
The NRA has fought responsible and reasonable regulation for years under the flag of the Second Amendment.
When the US Supreme Court finally speaks clearly on the issue and tells America that there is a Constitutionally protected right to bear arms – but that such a right can be abridged by a State’s public safety interest against the dissemination of sawed-off shotguns and rifles, bombs, cannons, machine guns, regulated carrying in public, etc. – the views of Nowick and De Chambeau as embodied in California’s firearm regulatory scheme will have been verified. The NRA will have to seek a new rationale for its opposition to rational firearm regulations.
Bill Cavala was Deputy Director of the Assembly Speaker’s Office of Member Services where he worked for over 30 years.
He attended undergraduate and graduate school in the 1960’s and received a doctorate in political science at UC Berkeley. He taught political science at UC Berkeley during the 1970's while he worked part-time for the State Assembly.
Cavala left teaching at UC Berkeley and went to work for Assembly Speaker Willie Brown in 1981 until his tenure as Speaker ended in 1995, and he has worked for his five successors as Speaker up to and including Speaker Fabian Nunez.
Mr. Cavala manages election campaigns for Democratic candidates.
