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Old April 21, 2009, 08:21 AM   #26
swman
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Doesn't apply to Illinois where it could certainly be used there.
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Old April 21, 2009, 09:51 AM   #27
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. . . 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.
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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.
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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.
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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.
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Old April 21, 2009, 10:46 AM   #28
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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.
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Old April 21, 2009, 11:38 AM   #29
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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.
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Old April 21, 2009, 11:45 AM   #30
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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.
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Old April 21, 2009, 11:49 AM   #31
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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
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Old April 21, 2009, 11:54 AM   #32
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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.
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Old April 21, 2009, 12:22 PM   #33
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I don't see how the 2A could be interpreted to force the government to allow gun sales on government land.
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Old April 21, 2009, 12:37 PM   #34
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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.
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Old April 21, 2009, 12:44 PM   #35
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I'm quite supprised it came out of the 9th Circut

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.
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Old April 21, 2009, 11:01 PM   #36
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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?
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Old April 22, 2009, 01:59 AM   #37
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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.
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Old April 22, 2009, 02:02 AM   #38
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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.
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Old April 22, 2009, 02:50 AM   #39
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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.

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.
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Old April 22, 2009, 03:23 AM   #40
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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.
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Old April 22, 2009, 06:02 AM   #41
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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.
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Old April 22, 2009, 07:45 AM   #42
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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.
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Old April 22, 2009, 08:07 AM   #43
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"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.
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Old April 22, 2009, 08:53 AM   #44
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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?
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Old April 22, 2009, 09:45 AM   #45
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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.
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Old April 22, 2009, 10:43 AM   #46
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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.
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Old April 22, 2009, 11:12 AM   #47
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Originally Posted by maestro pistolero
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?).
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Old April 22, 2009, 12:01 PM   #48
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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!
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Old April 22, 2009, 12:16 PM   #49
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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.
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Old April 22, 2009, 12:41 PM   #50
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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

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