Saturday, May 20, 2017

Take away my stuff, will you? SUE YOU, I will!

Today, May 18,the National Rifle Association Institute for Legislative Action (NRA-ILA) announced it is supporting, along with the California Rifle and Pistol Association (CRPA), an important Second Amendment lawsuit challenging California’s ban on the possession of standard capacity magazines capable of holding more than 10 rounds. The lawsuit, filed by NRA attorneys, titled Duncan v. Becerra,challenges California’s ban on possession of these standard capacity magazines because the law violates the Second Amendment, the due process clause, and takings clause of the United States Constitution.
What this article is suggesting is that California CANNOT confiscate private property without addressing the constitutional rights of the owners.

The first  *(Due Process Clause)* is that the owner cannot be deprived of his property without an actual legal action, in which he may defend the ownership of his property in court.

The second *(Taking Clause)* is that the owner, even if he loses the court decision, cannot be deprived of his property without compensation ... presumably, for the monetary value of the property which is being confiscated.
(GREY AREA ALERT: with a physical article, it may be sufficient to present a receipt for the original purchase; for landed property, such as a house and lot, the valuation of the property may be the cause of many more legal actions.)

It occurs to me that some folks may not be aware of the details of the "Due Process Clause", and the "Takings Clause", of the Constitution  Here are the details of both clauses of the 5th Amendment:

The Cornell School of Law provides a single article which addresses both clauses ... which are closely affiliated.

Due Process Clause:
The Fifth Amendment's reference to “due process” is only one of many promises of protection the Bill of Rights gives citizens against the federal government. 
Essentially, the Due Process law states that the government cannot appropriate property from its citizens without "Due Process" of law.  In order for the Feds to appropriate property from you, it must have a legal reason to do so, and that reason must be supported from a ruling from an appropriate court which permits you (the citizen) to present your case why this taking must not be allowed.

Other comments on :"Due Process" available here.   Also here.

Takings Clause:

The drafter of this clause, James Madison, opined: "A Government is instituted to protect property of every sort...This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own." 
Private property shall not be taken for a public use, without just compensation.
"... the Court has held that the Takings Clause prohibits the regulating agencies from using the permit process to leverage their governmental power to achieve what they wish without cost. "
This means that, while the government may acquire your property and having done so defined a good and justifiable reason for having done so ... it must compensate your for the property seized.

(Other commentary available here.)

The Fifth Amendment:

Amendment VNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

1 comment:

Anonymous said...

I don't find it hard to believe that California lawmakers are ignorant of our constitution, or just plain don't care.