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Thread: Nordyke v. King Decided by 9th Circuit - Second Amendment incorporated

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    Opinion is here.

    http://www.ca9.uscourts.gov/datastor...20/0715763.pdf

    Note, court upheld Alameda County's prohibition on gun shows as reasonable regulation.

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    This is just one of the MANY reasons why thousands a day of law abiding citizensare leaving Califonia.



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    Gee, so the 9th reads Heller to mean that people only have a constitutional right to bear arms in their homes???

    Like most of their decisions, the 9th does not understand the Constitution. They are (deliberately?)confusing Keep Armsand Bear Arms.

    I expect the 9th to be overturned once again, as they are some 75% of the time.

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    There is a need to set up good cases to attack California's disrespect for the 2nd amendment. Note that all this case stands for is that Alameda County can ban gun shows on county property. I don't like that result, but getting a Circuit Court of Appeals to hold for incorporate is extremely important.

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    ....although we conclude that the Second Amendment is indeed incorporated against the states, we AFFIRM the district court’s refusal to grant the Nordykes leave to amend their complaint to add a Second Amendment claim in this case.
    In other words:

    "You're right...... the second amendment applies here, BUT...... oops......it's too late now to go back and change your argument in this case. If you want to argue a 2nd amendment claim, you need to file another suit"

    IANAL, but that's my take on it which to me is not as bad a result as many are making it out to be.

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    AZkopper wrote:
    Gee, so the 9th reads Heller to mean that people only have a constitutional right to bear arms in their homes???

    Like most of their decisions, the 9th does not understand the Constitution. They are (deliberately?)confusing Keep Armsand Bear Arms.

    I expect the 9th to be overturned once again, as they are some 75% of the time.
    heller did not decide anything other than the question put before it. that was whether dick heller could have a handgun in his home. in doing so they said the 2A is an individual rather than a collective right.

    nordyke just says that the 2A means the states can't screw with whatever gun rights you have.

    courts rarely rule on things not at issue. there is a lot of litigation to go before the 2A gets fleshed out, but this is a big one.

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    ilbob wrote:
    heller did not decide anything other than the question put before it. that was whether dick heller could have a handgun in his home. in doing so they said the 2A is an individual rather than a collective right.

    nordyke just says that the 2A means the states can't screw with whatever gun rights you have.

    courts rarely rule on things not at issue. there is a lot of litigation to go before the 2A gets fleshed out, but this is a big one.
    I agree. I keep seeing a lot of expectation from RKBA advocates that gun laws are going to be swept away in one fell swoop. I keep using the analogy of the WWII "island-hopping" campaign. We've made two large steps with Heller and now this ruling. We're not going to win in one shot. Gun rights were taken away incrementally; they are going to have to be recovered the same way. It's how our system works.

    The last year has seen two enormous steps: the RKBA as an individual, not collective right, and now incorporation. These have focused on the "Keep" part of 'Right to Keep and Bear Arms'. I suspect we will soon see cases that focus on "Bear", which means carry.



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    Regular Member Thundar's Avatar
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    So we have case law that says 2A is incorporated but that strict scrutiny is not possible.

    Very important that they got around Cruikshank.

    Very important that it grants an incorporated individual right.

    I would say half win.

    What is now the standard for evaluating FEDERAL firearms law in the 9th Circuit?
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    AZkopper wrote:
    Gee, so the 9th reads Heller to mean that people only have a constitutional right to bear arms in their homes???

    Like most of their decisions, the 9th does not understand the Constitution. They are (deliberately?)confusing Keep Armsand Bear Arms.

    I expect the 9th to be overturned once again, as they are some 75% of the time.
    Well for starters, let's look at the good in the ruling... they've basically incorporated 2A into the 9th circuit- that's a good thing.


    We therefore conclude that the right to keep and bear


    arms is “deeply rooted in this Nation’s history and tradition.”


    Colonial revolutionaries, the Founders, and a host of commentators


    and lawmakers living during the first one hundred


    years of the Republic all insisted on the fundamental nature


    of the right. It has long been regarded as the “true palladium


    of liberty.” Colonists relied on it to assert and to win their


    independence, and the victorious Union sought to prevent a


    recalcitrant South from abridging it less than a century later.


    The crucial role this deeply rooted right has played in our


    birth and history compels us to recognize that it is indeed fundamental,


    that it is necessary to the Anglo-American conception


    of ordered liberty that we have inherited.
    17 We are


    therefore persuaded that the Due Process Clause of the Fourteenth

    Amendment incorporates the Second Amendment


    I am honestly stunned that the 9th would rule for incorporation to tell the truth, it's really a big deal considering their track record.

    We can go forward from here, at least out west we have part of what we were looking for in Heller. The case itself is weak. The county has made all county property sensitive areas- If I choose to make my place of business a "sensitive area" then so be it. The problem is Kommiefornia's weak incorporation laws.

    I'm no fan of the Ninth Circuit, but I didn't read the decision to say that the right was protected only in the home, rather that what Heller was addressing was only in the home, and only the draconian DC laws. There are many more court battles that remain. This is nowhere near being done and don't forget, the 9th is the most frequently over-ruled of the Distrcit Courts.

    All in all, I think this is a step in the right direction... we have incorporation in AZ now :celebrate (not that we needed it before).



    ETA: Gosh Dang you guys are fast! All that was posted while I was reading the opinion... I feel a day late and a dollar short.


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    WOOOHOOO!!!!

    I've been watching this with held breath over on Calguns / Calgunlaws for a while!

    One of the most exciting things about this ruling, is that (as people with more legal education than I have explained,) since the county *won* the lawsuit, they can't appeal the 2A incorporation.

    Now the Nordykes could appeal en banc, but that would be unlikely, and if they did, for the 2A ruling to be reversed would require a majority of the remaining judges to flip, which doesn't appear likely.

    Of course the Nordykes can also theoretically start their gun show up again, but on commercial (not county) property.

    Now as for the "reasonable regulation" bit, I doubt that it will be any easier to get so-called "assault weapons" or high-cap mags in california, but that's no surprise.

    What I'm most interested in is how this may or may not affect California's CCW laws.

    check out:
    http://www.calguns.net/calgunforum/s...d.php?t=172947

    http://www.calguns.net/calgunforum/s...d.php?t=175296

    http://volokh.powerblogs.com/archive...tml#1240254351

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    I'm interested in this ruling allowing us to nullify or strike down "Gun Free Zones" (AKA Defenseless Victim Zones or Unarmed Victim Zones) throughout CA and other places.
    Gun control isn't about guns -- it is about control.

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    demnogis wrote:
    I'm interested in this ruling allowing us to nullify or strike down "Gun Free Zones" (AKA Defenseless Victim Zones or Unarmed Victim Zones) throughout CA and other places.
    Don't hold your breath. All this does is incorporate the Second Amendment into the nineth circuit. I think 2nd Circuit did not incorporate so there is a split. This will eventually end up at SCOTUS, hopefully sooner rather than later. We have a favorable split on the court right now. If Ginsberg left and the noob was just as anti as she were, it would be a wash- but God forbid we lose one of the good guys.

    Getting incorporation was one of the things we were looking for in Heller. Next question is the one of scrutiny- DC Circuit originally ruled strict scrutiny- which is what we want, but it's still a way off.

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    If I remember correctly the 2nd Circuit didn't actually incorporate merely because they didn't actually seek to go through the process of testing it...This is not the same as the 9th ruling.

    As for hi-caps and AW's, I think the argument is better for our side. The 9th specifically mentioned nukes and other larger armaments. I know they mentioned that there would be or could be some reasonable restrictions on rifles and such, but I think we can argue those away in time.



    Dahwg wrote:
    demnogis wrote:
    I'm interested in this ruling allowing us to nullify or strike down "Gun Free Zones" (AKA Defenseless Victim Zones or Unarmed Victim Zones) throughout CA and other places.
    Don't hold your breath. All this does is incorporate the Second Amendment into the nineth circuit. I think 2nd Circuit did not incorporate so there is a split. This will eventually end up at SCOTUS, hopefully sooner rather than later. We have a favorable split on the court right now. If Ginsberg left and the noob was just as anti as she were, it would be a wash- but God forbid we lose one of the good guys.

    Getting incorporation was one of the things we were looking for in Heller. Next question is the one of scrutiny- DC Circuit originally ruled strict scrutiny- which is what we want, but it's still a way off.

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    Theseus wrote:
    If I remember correctly the 2nd Circuit didn't actually incorporate
    Folks - there is no split - the 2d Circuit never incorporated because there was no need to consider this prior to Heller at n.23.

    And remember, the federal courts do not bind state courts unless that federal court is the S. Ct.

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    Yes Mike, butwe can now sue State and Local governments in Fed Court over 2nd issues and make them holler!!!!!

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    Phssthpok wrote:
    ....although we conclude that the Second Amendment is indeed incorporated against the states, we AFFIRM the district court’s refusal to grant the Nordykes leave to amend their complaint to add a Second Amendment claim in this case.
    In other words:

    "You're right...... the second amendment applies here, BUT...... oops......it's too late now to go back and change your argument in this case. If you want to argue a 2nd amendment claim, you need to file another suit"

    IANAL, but that's my take on it which to me is not as bad a result as many are making it out to be.
    The Court rejected the amendment to the complaint because it was "futile." That means that the case is binding vis-a-vis gun shows on County property.


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    ilbob wrote:
    AZkopper wrote:
    Gee, so the 9th reads Heller to mean that people only have a constitutional right to bear arms in their homes???

    Like most of their decisions, the 9th does not understand the Constitution. They are (deliberately?)confusing Keep Armsand Bear Arms.

    I expect the 9th to be overturned once again, as they are some 75% of the time.
    heller did not decide anything other than the question put before it. that was whether dick heller could have a handgun in his home. in doing so they said the 2A is an individual rather than a collective right.

    nordyke just says that the 2A means the states can't screw with whatever gun rights you have.

    courts rarely rule on things not at issue. there is a lot of litigation to go before the 2A gets fleshed out, but this is a big one.

    Nordyke recognizes that the law doesn't interfere with the "core" 2A right to have a gun in the home recognized in Heller, but then goes farther saying:




    "The Ordinance falls on the lawful side of the divi

    sion, familiar from other areas of substantive due process doctrine,

    between unconstitutional interference with individual

    rights and permissible government nonfacilitation of their

    exercise."



    In other words, there is no right to a gun show on county property merely because gun shows facilitate 2A rights.



    Then it says:



    "Finally, prohibiting firearm possession on municipal

    property fits within the exception from the Second Amendment

    for “sensitive places” that
    Heller recognized."



    This final part, expanded "sensitive places" to include any County property because it reasoned that is where lots of people congregate. Thatis bad news for OC and CC in any place where lots of people congregate.



    The decision regarding incorporation is GREAT NEWS. But insofar as it concerns "bearing" arms outside the home, IMHO, it is the deaths knell for a 2A right in the 9th Circuit.

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    Mike wrote:
    Theseus wrote:
    If I remember correctly the 2nd Circuit didn't actually incorporate
    Folks - there is no split - the 2d Circuit never incorporated because there was no need to consider this prior to Heller at n.23.

    And remember, the federal courts do not bind state courts unless that federal court is the S. Ct.
    There is a post Heller split between the 4th and 9th Circuit. 4th dismissed Chet's civil rights lawsuit (the 2A part not the SSN part) based upon Cruikshank. 9th got around Cruikshank and incorporated.

    States and their political subdivisions are bound when sued for civil rights violations in federal court.

    What that means is that the Right to Keep and Bear Arms is a civil right in California and is not a civil right in Virginia. This just screams for Supreme Court certiorari.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Thundar wrote:
    Mike wrote:
    Theseus wrote:
    If I remember correctly the 2nd Circuit didn't actually incorporate
    Folks - there is no split - the 2d Circuit never incorporated because there was no need to consider this prior to Heller at n.23.

    And remember, the federal courts do not bind state courts unless that federal court is the S. Ct.
    There is a post Heller split between the 4th and 9th Circuit. 4th dismissed Chet's civil rights lawsuit (the 2A part not the SSN part) based upon Cruikshank.
    Nope - Chet's case was dismissed by a district court - there was no appeal.

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    http://www.cato-at-liberty.org/2009/...and-bear-arms/

    This report from Cato, the good people that brought the Heller Case.

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    I'd advise people review the discussion going on over at the Volokh Conspiracy (http://volokh.com/posts/1240247034.shtml). Eugene is a premier legal scholar on the 2A and a number of law professors blog there and you usually find excellent discussion in the comments.

    Anyway, my $.02 is that the decision has a lot of good in it but is troubling regarding its lack of discussion as to what constitutes "sensitive places" - basically stating that any government controlled land can be declared sensitive.

    The 9th circuit panel did not explicitly state the strict scrutiny applies, but it did indicate that this is what would be appropriate (see page 4497, footnote 19):

    Quoting the court:
    Fundamental rights usually receive strict scrutiny as a matter of substantive due process doctrine. See, e.g., Glucksberg, 521 U.S. at 721. . . . We find no reason to treat the Second Amendment differently.

    And at 4495: "The point is that language throughout Heller suggests that the right is fundamental by characterizing it the same way other opinions described enumerated rights found to be incorporated."

    at 4496: We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.”

    Thus, the court incorporated it and all but outright declared that it should be subject to strict scrutiny.

    However, disappointingly, it goes on to a weak analysis of how county fairgrounds are "sensitive areas" subject to infringement of the 2nd amendment right. A law subject to strict scrutiny must satisfy a compelling state interest that is narrowly tailored and uses the least restrictive means to achieve that interest. Rather than conducting an analysis using the three prongs of strict scrutiny, it makes a conclusory statement that County can deem "open space venues, such as County-owned
    parks, recreational areas, historic sites, parking lots of public buildings . . . and the County fairgrounds" as "sensitive places" because they are gathering places where high numbers of people might congregate. It only found "parking lots of public buildings" to be tenuous and not per se sensitive (See Nordyke at p. 4500).

    It seems to me that the County ordinance is overly broad because it is not narrowly tailored and does not use the least restrictive means to accomplish its goals. Particularly since the second amendment has language that is particularly restrictive of attempts to regulate bearing arms - "shall not be infringed".

    However, I think that the Court's language regarding parking lots bodes well for general open carry on roads, sidewalks, etc.

    The other thing which I found disturbing was the Court's finding that "the Ordinance does not meaningfully impede the ability of individuals to defend themselves in their
    homes with usable firearms, the core of the right as Heller analyzed it." That is not the "core right" found within Heller. Heller did not limit its analysis to self-defense and only drew its conclusion regarding firearms at home because that was all that was at issue in Heller. This one sentence draws a dark shadow over what would otherwise be a great case for open carry.


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    Yes, I wonder why so few people bother to actually read this decision.

    At any rate, none of that "disturbs" me by virtue of being very predictable. I didn't expect the 9th to go any farther than they did. Obviously, this will be getting the attention it needs from those who matter. The important part here is that now the Second is incorporated. The Nordyke decision didn't engage in proper strict scrutiny, and it was inconsistent with Heller. However, now that we have incorporation, the Nordykes should have grounds for appeal to the SCOTUS on Second Amendment grounds to get a decision consistent with Heller, right from the source.

    This was going to be the case no matter how far the 9th Circuit went. In any event they went just far enough.

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    Disintelligentsia wrote:
    I'd advise people review the discussion going on over at the Volokh Conspiracy (http://volokh.com/posts/1240247034.shtml). Eugene is a premier legal scholar on the 2A and a number of law professors blog there and you usually find excellent discussion in the comments.
    This board software really hates links sometimes... this one should work:

    http://volokh.com/posts/1240247034.shtml

    TFred


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    Mike wrote:
    Thundar wrote:
    Mike wrote:
    Theseus wrote:
    If I remember correctly the 2nd Circuit didn't actually incorporate
    Folks - there is no split - the 2d Circuit never incorporated because there was no need to consider this prior to Heller at n.23.

    And remember, the federal courts do not bind state courts unless that federal court is the S. Ct.
    There is a post Heller split between the 4th and 9th Circuit. 4th dismissed Chet's civil rights lawsuit (the 2A part not the SSN part) based upon Cruikshank.
    Nope - Chet's case was dismissed by a district court - there was no appeal.
    Nope- the Federal District Court in Norfolk relied upon the 4th Circuit (Not 2nd and Heller at Circuit) finding that 2A was not incorporated to dismiss.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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