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Old April 20, 2009, 01:07 PM   #1
ilbob
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Incorporation Thread - Nordyke is out!!

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

Quote:
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.
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Last edited by Al Norris; April 20, 2009 at 01:29 PM. Reason: title change
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Old April 20, 2009, 01:28 PM   #2
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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.....
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Old April 20, 2009, 01:43 PM   #3
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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.
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Old April 20, 2009, 01:47 PM   #4
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I read it.

Wow.

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Old April 20, 2009, 01:56 PM   #5
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Much good in there, specifically this on Page 29 of the PDF.
Quote:
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.
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Old April 20, 2009, 02:17 PM   #6
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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.
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Old April 20, 2009, 02:42 PM   #7
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i tried to follow this, but maybe someone can dumb it down for me? i have no idea what nordyke, rkba, or legalese means.
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Old April 20, 2009, 02:51 PM   #8
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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.
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Old April 20, 2009, 02:53 PM   #9
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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?
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Old April 20, 2009, 03:23 PM   #10
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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.
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Old April 20, 2009, 03:38 PM   #11
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Quote:
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.
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Old April 20, 2009, 03:39 PM   #12
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Quote:
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:
Quote:
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.
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Old April 20, 2009, 03:55 PM   #13
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So will this have to hit the SCOTUS for the rest of the country?
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Old April 20, 2009, 04:43 PM   #14
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Other than that the Nordykes seem to have gotten the shaft, this is what I find most distressing:
Quote:
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.
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Old April 20, 2009, 04:47 PM   #15
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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.
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Old April 20, 2009, 05:00 PM   #16
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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.
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Old April 20, 2009, 05:39 PM   #17
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Incorporation, YES!

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!
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Old April 20, 2009, 05:47 PM   #18
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Quote:
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.
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Old April 20, 2009, 08:54 PM   #19
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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.
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Old April 20, 2009, 09:56 PM   #20
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Quote:
Originally Posted by Wildalaska
I read it.

Wow.

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I thunked it! See my posts on the original thread (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.
Quote:
Originally Posted by Glenn
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!

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.

To read the rest of the Volokh blogs, click here.

Quote:
Originally Posted by raimius
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.
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Old April 21, 2009, 12:44 AM   #21
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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.
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Old April 21, 2009, 01:03 AM   #22
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Quote:
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.
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Old April 21, 2009, 03:35 AM   #23
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Thrilled about getting incorporation, but . . .

. . . 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?

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Old April 21, 2009, 06:50 AM   #24
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Why am I sometimes amazed when a court agrees with me?

Probly just me.
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Old April 21, 2009, 07:30 AM   #25
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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?)
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