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Thread: Nordyke en banc motion appears to have FAILED

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    Folks,

    A new list of successful en banc cases has been released today and Nordyke ain't in it:

    http://www.ca9.uscourts.gov/enbanc/v..._id=0000000037

    What this means is, Nordyke's holding that the 2nd Amendment is incorporated in the 9th Circuit is valid case law. Which means the holdings in Heller are valid case law too, applicable to the states.

    Heller very specifically says that we have a personal right to "bear" arms as well as "keep" them, for personal defense, and unloaded doesn't cut it. It also says states can regulate concealed carry or even eliminate it, but while doing so it cites (in footnote 9) seven prior cases that all say the same thing: concealed carry can be banned only because open carry is legal, therefore the 2nd Amendment (or state constitutional equivalents thereof) isn't being scrapped.

    I'm not saying "go out and open carry" - you WILL get busted. But I believe you'd beat the rap and it would be much smarter to sue immediately. HI bans both open and concealed carry and that, they can't get away with for long.

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    Jim March wrote:
    Folks,

    A new list of successful en banc cases has been released today and Nordyke ain't in it:...
    Jim March!!! From THR?

    A pleasure to see you! You're in Hawaii now?

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    No, just making sure the HI people know about this development.

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    Jim March wrote:
    Folks,

    A new list of successful en banc cases has been released today and Nordyke ain't in it:

    http://www.ca9.uscourts.gov/enbanc/v..._id=0000000037

    What this means is, Nordyke's holding that the 2nd Amendment is incorporated in the 9th Circuit is valid case law. Which means the holdings in Heller are valid case law too, applicable to the states.
    Well, not really, as Nordyke is not binding on any state court, where you will be for criminal prosecution by state governments.

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    >>Well, not really, as Nordyke is not binding on any state court, where you will be for criminal prosecution by state governments.<<

    Wanna bet?

    Seriously, you're a moderator?

    The Bill Of Rights acts as a control against state actions whenever a piece of it has been incorporated against the states. Who finds it incorporates? The Federal courts, according to the "selective incorporation" doctrine currently in effect. That's why state and local police have to give the Miranda warning, as one obvious example: Miranda is tied to our 5th Amendment rights.

    That's what Nordyke did: incorporated the 2nd Amendment against the states - at least the ones in the 9th Circuit. So for the first time ever, Hawaii has to honor the 2nd Amendment, including that whole annoying "right to bear arms" thing.

    Now granted, circuit courts in Chicago and New York have held otherwise, and there's no incorporation there yet. So we have a "circuit split", which more or less guarantees the US Supremes will deal with it.

    The Heller decision contains serious clues as to how they'll rule. The major anti-incorporation case of US v. Cruikshank is criticized twice in Heller.

    But in the meantime, here in the 9th, states are required to honor the 2nd Amendment and both Nordyke and Heller decisions.

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    Jim March wrote:
    >>Well, not really, as Nordyke is not binding on any state court, where you will be for criminal prosecution by state governments.<<

    Wanna bet?

    Seriously, you're a moderator?

    The Bill Of Rights acts as a control against state actions whenever a piece of it has been incorporated against the states. Who finds it incorporates? The Federal courts, according to the "selective incorporation" doctrine currently in effect. That's why state and local police have to give the Miranda warning, as one obvious example: Miranda is tied to our 5th Amendment rights.

    That's what Nordyke did: incorporated the 2nd Amendment against the states - at least the ones in the 9th Circuit. So for the first time ever, Hawaii has to honor the 2nd Amendment, including that whole annoying "right to bear arms" thing.

    Now granted, circuit courts in Chicago and New York have held otherwise, and there's no incorporation there yet. So we have a "circuit split", which more or less guarantees the US Supremes will deal with it.

    The Heller decision contains serious clues as to how they'll rule. The major anti-incorporation case of US v. Cruikshank is criticized twice in Heller.

    But in the meantime, here in the 9th, states are required to honor the 2nd Amendment and both Nordyke and Heller decisions.
    Jim, sorry but its black letter law that the only court which can bind state courts on federal constitutional holdings is the US Supreme Court. The states in the ninth circuit are free to agree or not with the Ninth Circuit panel on incorporation in Nordyke as are other states, but in no way can Nordyke bind state courts anywhere. That is why the Supreme Court exists - to break ties among the appellate courts of the sovereign states and lower federal courts on federal questions.

    I realize this seems odd - and perhaps odder still is that a Plaintiff can go to federal court and have a state statute declared unconstitutional under the federal constitution and then in this case state courts must respect the declaration of the federal court.

    But frankly, it would be most helpful if gun rights experts would not spread unambiguously incorrect legal information, e.g., that Nordyke binds state courts in the Ninth Circuit to hold that the second Amendment is incorporated - that is not true.

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    Mike wrote:
    Jim, sorry but its black letter law that the only court which can bind state courts on federal constitutional holdings is the US Supreme Court.
    mike, not to throw up a big dispute, but whats that black letter law?

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    DKSuddeth wrote:
    Mike wrote:
    Jim, sorry but its black letter law that the only court which can bind state courts on federal constitutional holdings is the US Supreme Court.
    mike, not to throw up a big dispute, but whats that black letter law?
    A common expression - well established law, e.g., it is black letter law that at common law a parent is not vicariously liable for even intentional torts of her children.

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    OK, first, a correction on my part: it appears there may still be time for the 9th Circuit to decide they're going to hear Nordyke en banc. We have up to another week and a half or so wait. IF they decide to hear it, it gets put on hold as active case law. If they don't, then it's valid case law in the 9th Circuit.

    I still remain convinced state courts in the 9th Circuit would then have to honor it even before the US Supremes speak on the point. I'm gathering data on that now.

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    Mike,

    While it is true that state courts applying federal law are bound by decisions of the U.S. Supreme Court (Elliott v. Albright, 209 Cal. App. 3d 1028, 1034 (1989)) and not bycircuit or district court opinions, circuit anddistrict courtopinions are entitled to "substantial deference" from state courts (Yee v. City of Escondido, 224 Cal. App. 3d 1349, 1351 (1990)). Incorporation would be a federal issue and there is no controlling Californiadecision on point. The one case to discuss it, People v. James (2009), re a 50 bmg rifle, specifically declined to address the incorporation issue finding that the Second Amendment rights as defined in Heller did not forbid the restrictions found in CA assault weapons ban statute in this circumstance thus it was unnecessary to reach a decision onincorporation. With all this said, althoughNordyke would not be "binding" per se re incorporation, if followingthe doctrineof stare decisis CAand other Courts within the Circuit should find that it isincorporated by giving "substantial deference" to the decision.





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    Tyrone wrote:
    Mike,

    While it is true that state courts applying federal law are bound by decisions of the U.S. Supreme Court (Elliott v. Albright, 209 Cal. App. 3d 1028, 1034 (1989)) and not bycircuit or district court opinions, circuit anddistrict courtopinions are entitled to "substantial deference" from state courts (Yee v. City of Escondido, 224 Cal. App. 3d 1349, 1351 (1990)). Incorporation would be a federal issue and there is no controlling Californiadecision on point. The one case to discuss it, People v. James (2009), re a 50 bmg rifle, specifically declined to address the incorporation issue finding that the Second Amendment rights as defined in Heller did not forbid the restrictions found in CA assault weapons ban statute in this circumstance thus it was unnecessary to reach a decision onincorporation. With all this said, althoughNordyke would not be "binding" per se re incorporation, if followingthe doctrineof stare decisis CAand other Courts within the Circuit should find that it isincorporated by giving "substantial deference" to the decision.
    I agree that an opinion from a federal circuit court of appeals is persuasive authority for a state appeallate court, but disagree with your implication that a decision by federal circuit court of appeals having jurisdiction over a state is more authoritative than other federal appeals courts - to presume so would offend the dignity of the high appellate courts of that state.

    As Judge silberman wrote in 2007, "State appellate courts['s] . . . interpretations of the U.S. Constitution are no less authoritative than those of our sister circuits." Parker v. District of Columbia, 478 F.3d 370, 380 (2007).

    State appellate courts are going to be wary against federal encroachment of state powers via incorporation, so my bet is most state courts will either duck the issue by holding conduct is not protected by the second amendment, or agree with the 2 circuits that denied incorporation, and not the lonely 9th.

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