• We are now running on a new, and hopefully much-improved, server. In addition we are also on new forum software. Any move entails a lot of technical details and I suspect we will encounter a few issues as the new server goes live. Please be patient with us. It will be worth it! :) Please help by posting all issues here.
  • The forum will be down for about an hour this weekend for maintenance. I apologize for the inconvenience.
  • If you are having trouble seeing the forum then you may need to clear your browser's DNS cache. Click here for instructions on how to do that
  • Please review the Forum Rules frequently as we are constantly trying to improve the forum for our members and visitors.

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

AZkopper

Regular Member
Joined
Jun 19, 2008
Messages
675
Location
Prescott, Arizona, USA
imported post

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.
 

ianto94

Regular Member
Joined
Jan 5, 2007
Messages
142
Location
, ,
imported post

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.
 

Phssthpok

Regular Member
Joined
Jul 17, 2007
Messages
1,026
Location
, ,
imported post

....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.;)
 

ilbob

Campaign Veteran
Joined
May 9, 2006
Messages
778
Location
, Illinois, USA
imported post

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.
 

RedKnightt

Regular Member
Joined
Nov 11, 2007
Messages
336
Location
Herndon, Virginia, USA
imported post

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.
 

Thundar

Regular Member
Joined
Sep 12, 2007
Messages
4,946
Location
Newport News, Virginia, USA
imported post

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 9[suP]th[/suP] Circuit?
 

Dahwg

Regular Member
Joined
Feb 22, 2008
Messages
661
Location
Tucson, Arizona, USA
imported post

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.


[align=left]We therefore conclude that the right to keep and bear[/align]

[align=left]arms is “deeply rooted in this Nation’s history and tradition.”[/align]

[align=left]Colonial revolutionaries, the Founders, and a host of commentators[/align]

[align=left]and lawmakers living during the first one hundred[/align]

[align=left]years of the Republic all insisted on the fundamental nature[/align]

[align=left]of the right. It has long been regarded as the “true palladium[/align]

[align=left]of liberty.” Colonists relied on it to assert and to win their[/align]

[align=left]independence, and the victorious Union sought to prevent a[/align]

[align=left]recalcitrant South from abridging it less than a century later.[/align]

[align=left]The crucial role this deeply rooted right has played in our[/align]

[align=left]birth and history compels us to recognize that it is indeed fundamental,[/align]

[align=left]that it is necessary to the Anglo-American conception[/align]

[align=left]of ordered liberty that we have inherited.
17 We are[/align]

[align=left]therefore persuaded that the Due Process Clause of the Fourteenth[/align]
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.
 

tico

Founder's Club Member
Joined
Sep 9, 2008
Messages
35
Location
houston, Texas, USA
imported post

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/showthread.php?t=172947

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

http://volokh.powerblogs.com/archives/archive_2009_04_19-2009_04_25.shtml#1240254351
 

demnogis

Regular Member
Joined
Jul 21, 2008
Messages
911
Location
Orange County, California, USA
imported post

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.
 

Dahwg

Regular Member
Joined
Feb 22, 2008
Messages
661
Location
Tucson, Arizona, USA
imported post

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.
 

Theseus

Founder's Club Member
Joined
Jul 6, 2008
Messages
964
Location
Lamma Island, HK
imported post

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.
 

Mike

Site Co-Founder
Joined
May 13, 2006
Messages
8,706
Location
Fairfax County, Virginia, USA
imported post

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.
 

cato

Newbie
Joined
Oct 29, 2006
Messages
2,338
Location
California, USA
imported post

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

The Donkey

New member
Joined
Sep 21, 2006
Messages
1,114
Location
Northern Virginia
imported post

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.
 

The Donkey

New member
Joined
Sep 21, 2006
Messages
1,114
Location
Northern Virginia
imported post

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:




[align=left]
"The Ordinance falls on the lawful side of the divi[/align]
[align=left]sion, familiar from other areas of substantive due process doctrine,[/align]
[align=left]between unconstitutional interference with individual[/align]
[align=left]rights and permissible government nonfacilitation of their[/align]
[align=left]exercise."[/align]


[align=left]In other words, there is no right to a gun show on county property merely because gun shows facilitate 2A rights. [/align]


[align=left]Then it says:[/align]


[align=left]"Finally, prohibiting firearm possession on municipal
[/align]
[align=left]property fits within the exception from the Second Amendment
[/align]
[align=left]for “sensitive places” that
Heller recognized."[/align]


[align=left]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.[/align]


[align=left]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.[/align]
 

Thundar

Regular Member
Joined
Sep 12, 2007
Messages
4,946
Location
Newport News, Virginia, USA
imported post

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.
 

Mike

Site Co-Founder
Joined
May 13, 2006
Messages
8,706
Location
Fairfax County, Virginia, USA
imported post

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.
 
Top