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View Full Version : Incorporation Thread - Nordyke is out!!


ilbob
April 20, 2009, 01:07 PM
http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf

We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

Al Norris
April 20, 2009, 01:28 PM
Good Lord, ilbob!

I didn't think Nordyke would be out yet, so I haven't been looking. Falling down on the job!

Now to read it.....

B. Lahey
April 20, 2009, 01:43 PM
I'm only halfway through it, I have a lot of other law to read today, but they are using some wacky precedent so far.

Slaughter-House. Weird.

Wildalaska
April 20, 2009, 01:47 PM
I read it.

Wow.

WildwhowouldhavethunkitAlaska ™

carguychris
April 20, 2009, 01:56 PM
Much good in there, specifically this on Page 29 of the PDF.
12 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 and applies it against the states and local governments.18
{emphasis mine}

The decision ultimately rejects Nordyke's attempt to overturn the county's gun ban at the fairgrounds by concluding that the county has a compelling reason to prohibit firearms in public gathering places, and that such a ban "...does not directly impede the efficacy of self-defense or limit self-defense in the home." (Page 31)

RKBA diehards may be upset by this, but the fact remains that this decision incorporates the Second Amendment, and that's big. Real big. :)

Technosavant
April 20, 2009, 02:17 PM
It does indeed look like Nordyke lost a small battle, but scored a huge win for the RKBA community at large at the same time. I feel bad for them, but it's one heck of a consolation prize.

Any comment on how this will apply nationwide? Or will it pretty much be limited to the jurisdiction of the 9th Circuit? If the latter, I can't imagine that it would be long until it applies to the others, since the 9th might well have been one of the least likely to declare the 2nd Amendment incorporated.

MajorWhiteBoy
April 20, 2009, 02:42 PM
i tried to follow this, but maybe someone can dumb it down for me? i have no idea what nordyke, rkba, or legalese means.

maestro pistolero
April 20, 2009, 02:51 PM
Stick around, you'll catch up!

RKBA=Right To Keep And Bear Arms.

Nordyke Vs Alameda = A court case in CA against a county that banned gun shows, but that also became a case about whether the 2nd amendment (RKBA) applies to the states or just to the federal government.

Legalese = Legal terminology that is difficult to understand by the average person.

MajorWhiteBoy
April 20, 2009, 02:53 PM
sorry, i know what the word legalese means, i just meant when was trying to read the court decision, i couldn't follow.

so, they're saying that the second ammendment can't just be up and overturned by a local government?

crashm1
April 20, 2009, 03:23 PM
IANAL just a humble auto mechanic
They are saying that it is a fundamental right to individual Americans as well as a right fundamental to the preservation of order and liberty in our republic. Which is pretty huge considering this court was both overturning it's previously stated stance that the 2nd amendment was a collective right and incorporating it via the due process clause of the 14th. The 9th circuit had previously found against incorporation when the plaintiff used the privileges and immunities clause. This sort of thing doesn't happen everyday. The other reason it's big is it sets up a conflict within federal circuit courts that makes it much more likely for the SCOTUS to grant citori to an incorporation case, either this one if Alemeda or Nordyke appeal or the Chicago case.

ilbob
April 20, 2009, 03:38 PM
either this one if Alemeda or Nordyke appeal or the Chicago case.
Alameda won the case at hand, so I don't think they can appeal.

Nordyke could appeal, but they are not going to appeal that the 2A is not incorporated.

So no matter what happens, I think the 2A is safely incorporated in the 9th.

carguychris
April 20, 2009, 03:39 PM
so, they're saying that the second ammendment can't just be up and overturned by a local government?
In short, yes. :)

"Incorporation" is a legal doctrine by which the concepts outlined in Section One of the Fourteenth Amendment are applied to the states, and, by extension, to local municipal governments. Quoting from the amendment:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This section of the Fourteenth Amendment says that the states can't take away individual rights that are granted by the Bill of Rights in the Constitution. Such protected rights are "incorporated".

D.C. vs. Heller held that the Second Amendment protects a pre-existing individual right. In light of this decision, it should follow that this right is protected against infringement by the states. However, like other incorporated rights, there is a process of court precedent that must be followed to get to that point. This process is complex because no Constitutional right is unlimited. To use a classic example, the First Amendment does not give you the right to scream "FIRE!!" in a crowded theater, to incite a riot, or to threaten to kill the President. The incorporation process will include lots of give-and-take to determine what restrictions state and local governments can and cannot enact.

Glenn E. Meyer
April 20, 2009, 03:55 PM
So will this have to hit the SCOTUS for the rest of the country?

grymster2007
April 20, 2009, 04:43 PM
Other than that the Nordykes seem to have gotten the shaft, this is what I find most distressing:
and the problem for our courts will be to define, in the context of particular regulation by the states and municipalities, what is reasonable and permissible and what is unreasonable and offensive to the Second Amendment.

MikeGoob
April 20, 2009, 04:47 PM
I dont mean to be cynical, but the 9th is one of the worst courts for our side. I find it hard to believe they would give in if they didnt have something up their sleeve.

Yellowfin
April 20, 2009, 05:00 PM
This can be used to NUKE the anti 2A garbage and their laws in CA and HI. It addresses CCW by actively repealing Hickman v Block which had made CCW exclusive discretion of sheriffs to rule as gods over who can and cannot exercise their 2A rights. Now lawsuits over CCW denial have standing with the 2nd Amendment. If California can get carry rights nailed down, the 2nd Amendment fight will vastly turn in our favor and the anti gun forces can be largely eradicated because gun ownership in highly populated areas will become practical again and thus more people will join us.

Carry rights in CA is THE big prize.

raimius
April 20, 2009, 05:39 PM
Incorporation, YES! :D:D:D

Did anyone notice they determined "sensitive places" (from Heller) can be applied to virtually any public area where people are expected to congregate. That might be a major problem for extending carry rights!

Technosavant
April 20, 2009, 05:47 PM
So will this have to hit the SCOTUS for the rest of the country?

I believe other circuit courts can take "judicial notice" of the 9th's decision in order to apply it inside their own jurisdiction. I'm not sure what that would take (if they can do it on their own hook or if a case has to come before them). It going to SCOTUS would enshrine it nationwide, but it would also open the door to it being overturned (the decision was quite reasonable, and given Heller, I don't think that's likely).

For now it only applies to those areas under the 9th Circuit jurisdiction, but I have a feeling it will propagate eventually.

Musketeer
April 20, 2009, 08:54 PM
It is hard to find a more anti 2A battleground than the 9th Circuit. If it stands there then it should be solid everywhere. You know those justices must have hated having to give in on this. The only thing they hate more is having a decision overturned by the SCOTUS.

Al Norris
April 20, 2009, 09:56 PM
I read it.

Wow.

WildwhowouldhavethunkitAlaska ™
I thunked it! See my posts on the original thread (http://thefiringline.com/forums/showthread.php?t=313844) (see posts #1 and #5).

It looks like the Nordykes took one for us, in order to get incorporation.

Folks, this is huge. No one thought that in less than a year, that any Circuit Court would get an incorporation case and actually rule in our favor. Most especially, the 9th Circuit.
So will this have to hit the SCOTUS for the rest of the country?
Not necessarily, Glenn. It could be that the Supreme Court will wait a while to see what the other circuits do. Remember, we still have to see what the 7th Circuit will say in the combined Chicago cases. Should the 7th take judicial notice of the "persuasive precedent" (but not binding precedent) of the 9th and incorporate, it will be another huge win.

The 5th Circuit has all but incorporated and it won't take much to push them over, if a case comes their way and the 9th and 7th have incorporated. The D.C. Circuit has already been affirmed by the SCOTUS with the Heller decision, so it is binding upon the entire Federal Government.

So what exactly is so grand about this?

Even though there is nothing within the California Constitution about the RKBA, it is now a fundamental right. For all Californians.

A Californian who is denied issuance of a concealed carry permit under that States "may issue" laws, now have standing to challenge the law (the decision beat Hickman v Block into dust).

I'm sure that those of you in CA, can think of all kinds of laws this may affect over a period of time! :D

Since this was a three judge panel, wherein all the judges agreed, it is instructive by what Judge Gould (a Clinton appointee) wrote: "Also, important governmental interests will justify reasonable regulation of rifles and handguns, and the problem for our courts will be to define, in the context of particular regulation by the states and municipalities, what is reasonable and permissible and what is unreasonable and offensive to the Second Amendment."

What I highlighted above is where it begins.

Several goods blogs on the Volokh Conspiracy page.

David Kopel has a 16 minute Podcast on Nordyke v. King (http://audio.ivoices.org/mp3/iipodcast285.mp3).

To read the rest of the Volokh blogs, click here (http://www.volokh.com/posts/chain_1240247034.shtml).

Did anyone notice they determined "sensitive places" (from Heller) can be applied to virtually any public area where people are expected to congregate. That might be a major problem for extending carry rights!
Short sighted. Try thinking in terms of the First!

Interesting side note to all of this. Not a single major newspaper of television station has the news of this extraordinary decision. Even the Brady Bunch is silent.

This should be a very telling point to everyone about the "agenda" of the MSN.

Jim March
April 21, 2009, 12:44 AM
This also casts yet more doubt on California's ability to discriminate against out-of-staters on CCW.

Right now Cali residents can (often only theoretically...) score CCW. Out-of-staters can't. And open carry (loaded) is completely banned while open-carry (unloaded) nets you major harassment at minimum and false charges of either loaded-carry or "disturbing the peace".

This matters because in Heller, footnote #9 cites to seven prior cases that all say the same thing: limitations on or even bans of concealed carry don't violate the 2nd (or state-level equivalents) so long as open carry is legal. And Heller specifically said that unloaded guns don't cut the mustard as support of the right to self defense in the home; there's no reason to suppose street (or woods for that matter) carry is any different.

Put another way, carry of SOME sort has to be legal. In Cali right now the right to carry is completely stomped on for out-of-state visitors even if they have home-state CCW and is almost completely stomped on for residents.

While the difference seems slight, it does matter: states are absolutely hard barred from discriminating against visiting residents of other states. That was true before today but the arguments is now "supercharged" and I'll be re-writing my pre-canned motion on the subject as soon as I can.

The other big target is Hawaii, where open-carry (loaded or otherwise) is totally banned and concealed permits exist in theory but zero are issued.

Stiofan
April 21, 2009, 01:03 AM
I dont mean to be cynical, but the 9th is one of the worst courts for our side. I find it hard to believe they would give in if they didnt have something up their sleeve.

They actually refused to hear the plantiff's motion on the 2nd Amendment early in the case, saying that the 2nd Amendment only guaranteed a collective right to keep and bear arms and as individuals, they had no standing to include that motion.

After Heller, they allowed plaintiffs to refile this motion and they reversed their earlier ruling.

maestro pistolero
April 21, 2009, 03:35 AM
. . . according to the court, how exactly is county property a sensitive place any more than a downtown gun shop? If guns can be prohibited on any county property, any city property, and any federal property, Then what would remain of the second amendment? Government property is the PEOPLES property.

There is way too much room for mischief here.

Does anyone have a sense of whether challenging this decision would risk overturning incorporation, since they weren't relying on non-incorporation to deny it?

publius42
April 21, 2009, 06:50 AM
Why am I sometimes amazed when a court agrees with me?

Probly just me. ;)

rantingredneck
April 21, 2009, 07:30 AM
Is it just me (I haven't re-read Heller in awhile), or does this opinion go much farther along the resisting government tyranny train of judicial thought than Heller? What I remember of Heller, they stuck their toe in that pond but relied much more heavily on the right of personal self-defense in their opinion. This one seems to get very deep into colonial and reconstruction era history of government oppression and the people's right to resist it.

Could this not have greater implications down the road (as precedent language for later litigation) for repeal of laws banning specific types of weapons that would be most useful to resist a modern army? (AWB (as applied to states)/NFA implications?)

swman
April 21, 2009, 08:21 AM
Doesn't apply to Illinois where it could certainly be used there.

carguychris
April 21, 2009, 09:51 AM
. . . according to the court, how exactly is county property a sensitive place any more than a downtown gun shop?
The opinion makes it clear that the justices of the Ninth Circuit think the county has a compelling public health and safety interest in prohibiting guns from places where large numbers of people gather. They argue that the fairgrounds is a "sensitive place" as referenced in Heller (pg. 33 of the PDF).

In essence, they're saying that the individual's right to self-defense is overridden by the need to provide safety for the general public. I don't agree with their argument in this case and I think there's good reason to debate it, but IMHO it's hard to say whether this particular court case is the best avenue for that. After all, the whole reason behind the lawsuit is to allow a gun show to take place. Establishing a right to self-defense in public gathering places still wouldn't necessarily guarantee that the promoters would be able to hold their show, so it's hard to say how much further they will try to carry this argument.
If guns can be prohibited on any county property, any city property, and any federal property, Then what would remain of the second amendment? Government property is the PEOPLES property.
I don't think any mainstream court will agree with the absolutist argument that the 2A allows citizens to carry arms on all government land, including such places as courthouses, jails, and military bases. However, I think there's certainly room to argue whether they should be allowed in public gathering places.
There is way too much room for mischief here.
Yes, there is. However, IMHO there will probably be better opportunities to argue how far the right to self-defense extends into the public sphere. If an anti-gun local government tries to prohibit legal CHL holders from carrying in public gathering places- which IMHO is nearly inevitable- it will provide a much better avenue for arguing this point. :)
Does anyone have a sense of whether challenging this decision would risk overturning incorporation, since they weren't relying on non-incorporation to deny it?
I don't get that sense.

publius42
April 21, 2009, 10:46 AM
If they allow shows for other legal products at the fairgrounds, why not allow shows for legal products with specific constitutional protection? Seems to me that if they're going to allow any shows, gun shows should be allowed. I hope they appeal and win on that issue.

Yellowfin
April 21, 2009, 11:38 AM
The opinion makes it clear that the justices of the Ninth Circuit think the county has a compelling public health and safety interest in prohibiting guns from places where large numbers of people gather. They argue that the fairgrounds is a "sensitive place" as referenced in Heller (pg. 33 of the PDF). That was consolation padding to keep them from going en banc and delaying further or pushing the issue again. Since they incorporated, SPECIFICALLY saying Hickman v Block is dead, CCW access will be opened up and the issue will be moot.

ilbob
April 21, 2009, 11:45 AM
That was consolation padding to keep them from going en banc and delaying further or pushing the issue again. Since they incorporated, SPECIFICALLY saying Hickman v Block is dead, CCW access will be opened up and the issue will be moot.
Just who would be going en banc?

The county can't because they WON the case.

This is a huge win and you guys are worried about minor details. Nothing in the dicta matters a whole lot. Its just musings of the judges. What matters is their findings.

Bartholomew Roberts
April 21, 2009, 11:49 AM
The county can ask for an en band rehearing. For that matter the other Judges of the 9th could ask for one (though it is unlikely). The Volokh link in Antipitas's post iis a great resource to understanding the decision

carguychris
April 21, 2009, 11:54 AM
If they allow shows for other legal products at the fairgrounds, why not allow shows for legal products with specific constitutional protection? Seems to me that if they're going to allow any shows, gun shows should be allowed.
IMHO they would have an uphill battle. The 2A guarantees the right to bear arms, not to conduct commerce in arms. I seriously doubt that Nordyke's attorneys could successfully argue that the lack of a gun show at the Alameda County Fairgrounds is a serious obstacle to anyone's ability to legally defend themselves. Firearms are widely available elsewhere. A widespread ban or unreasonable regulation on the sale of arms- such as a total ban on gun stores throughout Alameda County- could act as a de-facto gun ban, and would certainly be very difficult to defend under D.C. v. Heller, but that's not the case here.

The justices touch on this point on Pages 31 and 32 of the decision. Using an abortion court case as an example, they argue that just because something is protected under the Constitution and/or court precedent, that does not imply that the government has an implied duty to ensure that it's readily available. As it relates to this court case, and regardless of my views on abortion (which IMHO are irrelevant here and will not be discussed), I agree with this argument.

I strongly oppose widespread restrictions on gun sales, but OTOH I don't see how the 2A could be interpreted to force the government to allow gun sales on government land.

Wildalaska
April 21, 2009, 12:22 PM
I don't see how the 2A could be interpreted to force the government to allow gun sales on government land.

Bingo

WildathoughtfulanswerAlaska ™

maestro pistolero
April 21, 2009, 12:37 PM
I don't think any mainstream court will agree with the absolutist argument that the 2A allows citizens to carry arms on all government land, including such places as courthouses, jails, and military bases. However, I think there's certainly room to argue whether they should be allowed in public gathering places.

I am not so much of an absolutist as my post could lead you to believe. But beaches are public gathering places. So are parades, fireworks displays, parks, bus stops, and movie theaters and restaurants.

Any place where people gather could be designated a sensitive place until there is a legal definition of sensitive.

Having won incorporation, we could see the right abrogated, simply by designating any public place to be sensitive.

kraigwy
April 21, 2009, 12:44 PM
But, sitting that aside, it was a great read:

In my opinion, not just in regard to case law protecting the 2nd Amendment, but the history asspect.

(I like history).

Maybe in reading (or scimming over) other cases I missed it, but in this case I found the History this Case present quite interesting. Not just in the reasons for drafting, but in applying the 2nd Amendment to the states with the 14th Amendment.

Regardless of what one thinks of the 2nd Amendment, the history this case provides makes it a great read.

To bad we can't force lawmakers to read this case in its intirity.

2edgesword
April 21, 2009, 11:01 PM
I don't think this is going to be much help to out of staters because the 9th circuit was careful to mention that the focus of the self-defense right is in the home. This decision will only help out of staters if you can extend home to include our hotel room.

Does this decision help push the issue of shall issue in those states where it is currently may issue?

moon1234
April 22, 2009, 01:59 AM
The problem with this decision is that the county made an arbitrary decision that this was for public safety. There is NO evidence that gun shows threaten public safety when held on public property.

LARGE numbers of people gather in hotel conference rooms and other large venues for the exact same purpose. The sole reason this ordinance was enacted was to ban a single group from RENTING a government owned space for their show. This is no different than a car show, dog show, etc. all renting the same space.

If you want to carry the abortion example forward the county could pass a ban on people renting the fairgrounds for a pro-life rally where people will come to pray, show videos, etc. stating that this activity can threaten the public safety because the material may incite people to perform criminal acts. We all know this to be false, but it is the same thinking that they used in the gun ban.

They do know more people are killed in car accidents by a very large number than by a gun discharging each year right? Do you think they would ban a car show where sports cars were being sold because they threaten the public safety? It is much more likely that a car bought at the car show will be driven by a drunk driver who will kill several people when he crashes it into some family's mini-van.

While I like the incorporation, I find their logic in approving the ordinance terrible. It is unsupported by the facts and is completely based on emotion.

maestro pistolero
April 22, 2009, 02:02 AM
that the focus of the self-defense right is in the home.

Not necessarily. That just happened to be the extent to which Gura was willing to push the supreme court in Heller. And Heller is what the 9th circuit was relying on.

Limiting the case (Heller) to carrying on the home was wise for the argument at hand, because it focused the Supreme Court on the one place in which most folks consider the right of self defense to be sacred. It may have even helped get the desired ruling.

Now that we have 2A as an individual right, and incorporation in the 9th, it can (and will) be argued that fundamental civi rights don't end at your doorstep.

maestro pistolero
April 22, 2009, 02:50 AM
on ANY mainstream media outlets is more than just a little conspicuous, isn't it? I have to shake my head.

Wasn't it George Stephanopoulos that said that the key to the Clintons' uncanny ability to weather public scrutiny, was their utter shamelessness?

It seems the mainstream media has torn a page from the Clinton's playbook.

My apologies for the political analogy.

JuanCarlos
April 22, 2009, 03:23 AM
I'd like to believe that the lack of coverage in major outlets (so far all I'm seeing as far as "mainstream" media goes would be a few local papers in the region) has something to do with this being a largely expected outcome. After all, was there every really any chance that it wouldn't be incorporated?

I'm trying really hard.

Alternately, I was trying to believe that the press is waiting until the decision is final (since there may be some theoretical chance if it being heard en banc).


I can't come up with any other reasons. I mean, ignoring a ruling certainly won't make it go away or anything. And it's not like keeping it on the down low will delay any challenges based on this; it's already all over the kind of outlets that any likely challengers will be familiar with. Including...well, here. ;)

alloy
April 22, 2009, 06:02 AM
I'd like to believe that the lack of coverage in major outlets (so far all I'm seeing as far as "mainstream" media goes would be a few local papers in the region) has something to do with this being a largely expected outcome.

Lou Dobbs has covered it the last two nights on his show.

Kmar40
April 22, 2009, 07:45 AM
I believe other circuit courts can take "judicial notice" Judicial notice isn't the proper term. It is an evidenciary term which I won't bore you with here.

To other circuits the opnion might be persuasive authority, which is opposed to binding authority.

2edgesword
April 22, 2009, 08:07 AM
"Now that we have 2A as an individual right, and incorporation in the 9th, it can (and will) be argued that fundamental civi rights don't end at your doorstep."

Agree. The battle goes on.

A statement in the decision makes the claim that the home is "where the
need for defense of self, family, and property is most acute".

I'm curious as to what the statistics are regarding physical attacks and where they re most likely to occur. Is it more likely that an individual would be attacked in their home or one the street? You hear a lot about home invasions but my thinking would be that attacks occur more often on the street.

Anyway, the battle to extend the right to self-protection using a handgun in the home seems to have take some steps forward. The battle to extend that right to your car or while walking on the street will be a tough one in places like NY.

bikerbill
April 22, 2009, 08:53 AM
This is an amazing ruling, especially since it comes from the 9th Circuit, probably the most liberal (and hence the most overturned) in the country ... anybody care to take a guess how the Obama administration will react?

Brian Pfleuger
April 22, 2009, 09:45 AM
care to take a guess how the Obama administration will react?

1) Ignore until forced to respond.
2) Publicly confirm that it is a good decision.
3) Work actively behind the scenes to under-mine and minimize the consequences.

2edgesword
April 22, 2009, 10:43 AM
1) Ignore until forced to respond.
2) Publicly confirm that it is a good decision.
3) Work actively behind the scenes to under-mine and minimize the consequences.

Exactly.

I didn't hear a thing about this decision in any of the news programing I watched and heard.

Al Norris
April 22, 2009, 11:12 AM
The total absence of this groundbreaking decision
on ANY mainstream media outlets is more than just a little conspicuous, isn't it? I have to shake my head.

I have seen some plausible explanations as to why there is a seeming news black out on this.

Most rely on some form of the idea that Nordyke is a fairly unknown case and the MSM is busy bringing itself up to speed. Um, Heller was a fairly unknown case. It didn't take the MSM more than 2 hours to get up to speed, after the D.C. Circuit opinion.

Between the D.C. Circuit opinion and the SCOTUS Decision, which took a year and a half, there were many articles. Add all the articles after the Heller decision, the play up to and after the election. The gun buying on the lead-up to the election and most especially after the election, and now the ammo shortage, the MSM have been having a field day.

Now add to this mix, all the stories on gun-control and rumor of gun-control; Eric Holder; Pelosi; Obama; Mexico, etc. ...

Any argument that the MSM doesn't know or doesn't get the ramifications, just doesn't wash.

Nor do I except the theory that it isn't being reported because "this being a largely expected outcome." Coming from the 9th Circuit (a circuit notorious for its anti-gun posture), this decision (the incorporation part) was most certainly not expected.

Nor do I believe that there has been any concerted conspiracy on the part of the MSM.

Go to the Associated Press wire service and lookup the following words: 9th Circuit; Nordyke; Incorporation. Only the first term brings any results. Ten links to prior stories, 7 of which occurred before April 20th. None of which relate to the topic we are discussing. The latter two terms have zero results.

Reuters returns no stories at all.

If the two largest and most subscribed news services do not deign to publish a lead-on story, why would anyone publish their own story?

Most news agencies, papers and television stations have their own "court reporters." So it isn't unknown, even though the AP and Reuters do not have a wire story available.

What I think may be happening is utter shock. They are absolutely dumbfounded. This decision would place the entire stream of the current debate over arms and Mexico into turmoil. I'm beginning to think that there have been individual decisions within the various news agencies, to not report this, so that it keeps the current political debate on the forefront of America.

My thinking is bolstered by the fact that the Brady Center has not issued any statement whatsoever. Paul Helmke is not an idiot. If they (he) make no statement, there is nothing (in that agenda) for the media to latch onto.

By the individual actions of not reporting this, the media can help keep the Obama Administration "focused" on its domestic and international goals. The media is "helping" to keep distractions away from the administration.

Therefore, the Obama Administration does not have to say a word about this (until and unless forced to), and will continue as if this hasn't happened (If a tree falls in the forest and no one is there, does it really make any noise?).

maestro pistolero
April 22, 2009, 12:01 PM
Lou Dobbs has covered it the last two nights on his show.

Ok, the NEAR total absence of stories, then. Good 'ol Lou.

Al, I too have searched those terms and was dumbfounded. In a way, it shows how big a blow this is to the Brady bunch. This is an elephant in their living room. I would love to be a fly on the wall in their next meeting!

B. Lahey
April 22, 2009, 12:16 PM
It's not on the news because they would have to explain what "incorporation" is, and they don't even understand it themselves. Explaining the application of the bill o' rights to the states would be a long, boring (to dullards) segment and a million people would reach for the remote to see shiny colors and screeching on another network.

Wildalaska
April 22, 2009, 12:41 PM
It's not on the news because they would have to explain what "incorporation" is, and they don't even understand it themselves. Explaining the application of the bill o' rights to the states would be a long, boring (to dullards) segment and a million people would reach for the remote to see shiny colors and screeching on another network.

I tend to agree. As soon as I found out about it. I emailed the link to Drudge report and my contacts in the local media (of which I have many having been on TV about guns as recently as last week)...

Nada...

Why?

It doesnt bleed.

No bleed, no lead.

Too academic.

But so nice :)

WildletsallemailthebradybunchtoaskaboutitAlaska ™

grymster2007
April 22, 2009, 01:14 PM
WildletsallemailthebradybunchtoaskaboutitAlaska Done.

I asked them why they were not reporting on an apparent victory for their cause. After all, the 9th circuit affirmed the lower court's summary judgement against the Nordykes.

JuanCarlos
April 22, 2009, 02:10 PM
It's not on the news because they would have to explain what "incorporation" is, and they don't even understand it themselves. Explaining the application of the bill o' rights to the states would be a long, boring (to dullards) segment and a million people would reach for the remote to see shiny colors and screeching on another network.

I'd hope every media outlet's news room would have somebody on hand who understands the concept of incorporation. I mean, I know enough "random dudes on the internet" that do, so I'd assume so. I agree, however, that explaining the nuance of this to the audience would be an exercise in futility.

So far, aside from (apparently) Lou Dobbs, the only other mainstream news source I'm seeing anything about this in is the San Francisco Chronicle.

My other guess is something WildAlaska touched on, but only in passing...it's too academic. At this point, this decision has had basically zero impact. California residents may now challenge gun laws, but it's not like any of them are immediately impacted by this decision (the only specific gun law involved was upheld). Compare this to Heller, in which D.C.'s actual handgun ban was being immediately challenged.

To some extent, as far as the average mainstream news consumer is concerned (again, the same consumers who don't know what incorporation means), this isn't news. The cases that this leads to will be news.

orchidhunter
April 22, 2009, 03:04 PM
Yep, it's binding in the 9th Circuit. Can be cited in other
Circuits, which they would take into account, but doesn't bind them.
Note that "binding" is often more theory than fact, since there are
ways to get around a binding decision (distinguish it -- facts in
this case are somewhat different from facts in that case -- or
sometimes outright ignore it, or call for en banc review by all the
judges in the circuit and try to get them to overrule the prior
decision). And a well-reasoned opinion from one circuit can carry
weight in others. And a circuit split, where some circuits go one way
and others go another, is a good basis for asking the Supreme Court
to take it on and settle the issue. orchidhunter

Al Norris
April 22, 2009, 11:34 PM
Too Academic?

Then explain to me all the post Heller analysis that explained how the case only affected D.C, even if it did foreclose the collective rights interpretation.

Has everyone forgotten that?

Wildalaska
April 23, 2009, 12:23 AM
Good point

WildmaybethemsmhopesthedecisonwillgoawayAlaska TM

sholling
April 23, 2009, 02:03 AM
The San Fransisco Chronicle has a pretty straight shooting analysis (http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/04/21/BA1V1760BI.DTL&type=printable).

B. Lahey
April 23, 2009, 07:03 AM
I'd hope every media outlet's news room would have somebody on hand who understands the concept of incorporation.

They don't. They may have lawyers they could ask, but in the boiler room? Not a chance in hell. Contrary to popular belief, journalists are not intellectuals. They don't think, they just write.

maestro pistolero
April 23, 2009, 11:47 AM
Then explain to me all the post Heller analysis that explained how the case only affected D.C, even if it did foreclose the collective rights interpretation

That's the first time I've seen that argument. But, leave it to liberal media to take a clear expansion of liberty and spin it as a contraction.

rwilson452
April 23, 2009, 11:56 AM
Someone refresh my memory. Didn't the 2nd circuit take a different view?

Yellowfin
April 23, 2009, 04:34 PM
The 2nd Circuit had a numbskull (pun intended) who ran a pro se case (ALWAYS a mistake) challenging a NYC ban on nunchaku. It had little standing, poor arguement, and little hope for success. The Nordykes had considerable standing, a better arguement, and one of the best lawyers in the country representing them and a coalition of all the top 2A minds within several hundred miles AND Alan Gura working on it.

Also, the 9th had a few decisions on file that specifically hinged on the collective rights 2A view which Heller blew out of the water. All they had to do was rule that those decisions no longer were good because Heller said individual right. We got a GREAT judge on the opinion.

maestro pistolero
April 23, 2009, 05:37 PM
Despite all the zeal of the day, does anyone share my concern about this ruling emboldening local government to undermine the newly won incorporation with flimsy claims that nearly any public area may considered a "sensitive place" in the context of the Heller decision?

I am not at all convinced that we should let this stand. I will be very interested to learn the strategy of the Nordykes going forward. Obviously, any approach going forward should not endanger the incorporation, which would be hard to imagine, given the courts' broad reasoning behind incorporation.

grymster2007
April 23, 2009, 07:25 PM
does anyone share my concern about this ruling emboldening local government to undermine the newly won incorporation with flimsy claims that nearly any public area may considered a "sensitive place" in the context of the Heller decision? I do. That was my first thought on reading the ruling and in fact I posted on it. How long could the states play those shenanigans before some high court makes a determination on what constitutes "sensitive"? I image that could go on for some time, especially since defining sensitive isn't going to be easy.

maestro pistolero
April 23, 2009, 07:57 PM
Schools and government buildings were the terms Scalia used, if I recall. This court extended that to a county fairground (building, I assume) which although technically a government building, is almost certainly not the type of 'sensitive place' the USSC majority was referring to.

Public housing is also a government building, but also a domicile. If 2A applies anywhere, it clearly applies in the home, whether government owned or not.

Are we to believe that a county fairground building is a more 'sensitive place' than a government apartment building, sleeping babies and all? I'd like to see someone try to make that argument.

carguychris
April 23, 2009, 09:24 PM
Are we to believe that a county fairground building is a more 'sensitive place' than a government apartment building, sleeping babies and all? I'd like to see someone try to make that argument.
Therein lies the best argument for making an appeal to the SCOTUS and overturning this decision. :) However, as I pointed out earlier, the main problem is that this particular case isn't directly about self-defense; it's about holding a gun show.

OTOH it's only a matter of time before another case emerges that addresses this issue head-on.

maestro pistolero
April 23, 2009, 09:37 PM
it's only a matter of time before another case emerges that addresses this issue head-on.

Right. The challenge now seems a little narrow for the breadth of the ordinance. It's almost as if they were asking for an exception to the ordinance, instead of addressing the issue head on as you describe.

But when the case started out, there was no Heller decision, and, of course, no incorporation. Now there's both.

This case was about a gun show, but the ordinance challenged says no guns on any county property. That's a ban, in my opinion, because county property is everywhere.

What's next, no guns on city property? And by the way, no guns on federal land either!

The court seems to be contending that all county property is 'sensitive' in the sense that the Scalia meant it in Heller. It is overreaching, to say the least.

cold dead hands
April 24, 2009, 02:43 AM
I strongly oppose widespread restrictions on gun sales, but OTOH I don't see how the 2A could be interpreted to force the government to allow gun sales on government land.

There is no Government Land. It is "we, the people" land. We the people have a right to private commerce (that is open to the public...yes, the twain shall meet) wherever we choose to have it, provided it doesn't interfere with the standards of common civility...i.e. no having it on Main Street at rush hour . Not to mention that the ability to bear arms (and they cannot be bourne unless purchased, seeing as how the average citizen has no firearm manufacturing skills, for most regular type folks) has nothing to do with being forced into a storefront property.

If a large group of folks want to come together for a gun bazaar and a large(r) group want to attend the bazaar how is it that this is repugnant to the 2A. There will be lots of "bearing of arms". Last time I checked, this was perfectly legal.

If you really want to get down and dirty about it...FFL's smack in the face of the 2A.

A person spends private money on guns. He sells them for a profit. Where does the ATF fit in to this? Private property being transferred has no business in .fed hands.

Fine...he has to pay taxes on his profits. Explain how any of the gun trade is more than an IRS issue...assuming you believe that the IRS is a good thing...

publius42
April 26, 2009, 11:01 AM
The 9th circuit opinion did comment that it was "odd" to consider a parking lot a "sensitive place" as Scalia used the term.

The Nordykes argue that the Ordinance is overbroad
because it covers more than such sensitive places. They list
the areas covered: “open space venues, such as County-owned
parks, recreational areas, historic sites, parking lots of public
buildings . . . and the County fairgrounds.” The only one of
these that seems odd as a “sensitive place” is parking lots.

It's not the only one that seems odd to me, and given the history presented at the case, it seems that a sure way to prevent any future shootings at the fairgrounds would be to hold a gun show there that never closes. ;)