While this should not be surprising to anyone… Liberty was dealt another blow this last week in California.
Danny Villanueva and some of his cohorts decided to sue California Attorney General Xavier Becerra and some of his buddies about the whole DOJ “assault weapons” registration scheme. Specifically, they thought that the method DOJ used in getting the rules approved through the Office of Administrative Law was problematic (read: illegal), and, thus, the registration process should be scrapped entirely. Their main issue was the DOJ used a method called “file and print,” which bypassed the typical “file and comment” statutory requirement. Basically, DOJ knew that its proposed regulations went beyond the scope of the legislation, and it did not want to be called out on it. By using file and print, no one would have the opportunity to comment on the proposed rules and point out the obvious problems with them. Metaphorically, DOJ wanted to shove these rules down the throat of the body politic.
So Mr. Villanueva sued, and Fresno County Superior Court Judge Mark Snauffer said… (of course I am paraphrasing)… ”Oh, come on, don’t sweat the small stuff; DOJ rules stand.”
The decision is chock-full of quotes from other decisions that would make any civil libertarian cringe with disgust… but my favorite gem is this:
“…the legislature was not constitutionally compelled to throw up its hands just because a perfectly comprehensive regulatory shame was not politically achievable. The problems of government are practical ones and may justify, if they do not require, rough accommodations - illogical, it may be and unscientific.” (Kaser, supra, 23 Cal.4th at p. 487”
What the f#$k?!?
Let’s philosophically expand on this, shall we?
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So, let’s review how we got here in the first place…
The legislature passed SB 880 that said, statutorily, the bullet button on an AR-15, which for years had been considered an adequate method of making the magazine “fixed,” and, thereby, removing the weapon from the “assault weapons” category, would no longer suffice. (Basically, if the weapon after January 1st had a bullet button on it, it should be recognized as a detachable magazine, and… if one or more “evil features” are present on the gun, voila… you have an “assault weapon.”)
So what is a law-abiding citizen to do?
Well, one of the options is to take advantage of a statutory time frame where lowly subjects (sorry, citizens) are allowed to register their weapons as “assault weapons.”
Cool… So let’s think about this for a minute. If the weapon is registered as an “assault weapon”… and the whole purpose of the bullet button was to make it not an “assault weapon,” then it would stand to reason that once statutorily recognized as an “assault weapon” there should be no need for a bullet button at all.
In fact, many of us recognized this and thought, as we approached January 1, that registration made perfect sense.
But, DOJ in its promulgated rules (yeah… the ones that they forced down our throats without a comment period) essentially created a new class of “assault weapons.” We call them “bullet button assault weapons,” since once registered they MUST retain the bullet button post-registration.
Ok… so now onto the philosophical part:
You need to understand that laws, all laws… no matter how seemingly benign or necessary…are infringements on personal freedom. Sometimes they are absolutely necessary for a society to be at peace… but, make no mistake, they are freedom-limiting devices. Our Framers completely understood this, as did Cicero and Aristotle. Thus, a democracy is devised to make the development of laws a difficult process.
You see, once a law has been enacted, implicit in that law is the threat of violence.
We craft a statute and, for the statute to be enforced, people with arms who have been sanctioned by the State, are mandated to use violence, or the threat of violence, to ensure the law is followed. This coercive power of the State was of extreme concern to our Framers, so they built in layers upon layers of protections for citizens. Most of you are aware from high school civics that we have a checks and balances system to prevent governmental tyranny. But the prevention against tyranny actually starts at the rule-making process itself.
The legislature makes law.
Why the legislature of all places? What do legislators know about a particular subject? Well, many times, not a whole hell of a lot. What they do have is the Sword of Damocles hanging over their heads every two years. Yep, if they start behaving badly their constituents get to fire them. So, to inoculate them from those pesky constituents, they often times demand a “watering down” of legislation to make it more amenable to specific constituents. This is “sausage making,” and it is specifically intended to be difficult to get legislation passed.
Again, the Framers understood that ALL laws limit freedom, so the only way to truly strike a balance between the enumerated powers of the government and the rights of the citizens, is to force law making to be confined to the crucible of the legislature.
Unfortunately, in California we have developed the Office of Administrative Law.
Basically, we allow the legislature to make laws, and then executive agencies create executive rules (which have the force of law) that create a greater level of specificity in the actual application of the statutory law.
Here is the problem though:
When the legislature does not have the political ability to generate a law, it comes up with the “best it can get,” and rely on the executive agency (in this case the DOJ) to craft more stringent regulations than the legislature could politically achieve.
This is completely antithetical to the guiding principles of our Framers.
It also takes a major chunk out of general respect for the law. Tyranny is something that constantly needs to be kept at bay. Judges cannot exclusively act as technicians… if that were the case, they could easily be replaced with computers. Judges, like the lawyers who present before them, must stand as defenders of the Constitution and the philosophical principles that it codifies.
Sadly, this is not always the case.